52 N.Y.S. 382 | N.Y. App. Div. | 1898
On the 26th of November, 1887, the firm of S. Fleischer & Co. made a general assignment for the benefit of creditors to one Rosenthal. The assignee accepted the trust and qualified by giving the bond required by statute. Thereafter the firm of Wilmerding, Hoguet & Co., and others, judgment creditors of the assignor, brought suit to set aside the assignment to Rosenthal upon the ground that the same was given with intent to hinder, delay and defraud the creditors of the assignor. This suit was prosecuted to, and resulted in, a decree which was entered on the 16tli of November, 1888, setting aside the assignment as against the plaintiffs, appointing a receiver and directing the delivery to him of all of the assigned property. The decree was thereafter modified by directing the assignee to pay to the receiver the sum of $4,831.47. The assignee having failed to make such payment, he was, on the 1st of April, 1889, by an order entered in a proceeding instituted by another creditor of the assignor, removed and one Herman Cantor, the appellant herein; appointed in his place. Rosenthal was
The sole question, therefore, presented related to the ruling of the referee surcharging the accounts of the substituted assignee with the sum of $5,109.36 paid to the receiver above mentioned. The appellant is undoubtedly correct in his contention that the plaintiffs in the Wilmerding suit obtained a lien on the property and assets assigned to Rosenthal, but the money with which the payment here was made was not made out of or derived, either directly or indirectly, from such property or assets. It was money recovered by the substituted assignee from the sureties on the bond of the original assignee. But it is suggested that this money was a substitute for the property and assets originally assigned, and that, therefore, the lien acquired by the decree in the Wilmerding suit attached to it equally with the property and assets originally transferred. That this contention is unsound
The order amending the decree by directing the substituted assignee to pay to the receiver the sum which he did is of no importance. That order was made upon the consent of the substituted assignee, and without notice to the general creditors, the parties interested in the fund and in whose interest it was his duty to act.
It follows that the order appealed from was properly made and must be affirmed, with ten dollars costs and disbursements.
Barrett, Rimset and O’Brien, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.