160 N.Y.S. 79 | N.Y. App. Div. | 1916
These two orders may conveniently be considered together. On December 1, 1915, Jacob Berman, being indebted to
Cory, the assignee for the benefit of creditors, omitted to record the assignment as required by statute, or give a bond or take the other steps required of such an assignee. Thereupon a motion was made that he be removed as assignee and and that he be required to turn over all the assets collected by him to the receiver in supplementary proceedings. This motion was granted as made, and from the order granting it the assignee appeals.
It is quite apparent that the order, in so far as it directs the assignee to pay over the funds now in his possession to a receiver in supplementary proceedings, is unauthorized and erroneous. By the assignment the title to the assets passed to the assignee, and the fact that he failed to fulfill the requirements of the statute as to things to be done subsequent to the assignment does not render.the assignment itself void or cause the title to the assets to revert to the assignor. Such requirements are merely directory. (Warner v. Jaffray, 96 N. Y. 248, 253; Nicoll v. Spowers, 105 id. 1; Dutchess County Mutual Ins. Co. v. Van Wagonen, 132 id. 398, 402.) It is true that these decisions were rendered under the old “ General Assignment Act,” which has now been superseded by the “Debtor and Creditor Law,” but with regard to the question now under consideration the two statutes are practically identical, so that decisions under the old law are equally applicable to the new. (See Laws of 1877, chap. 466, as amd.; Consol. Laws, chap. 12 [Laws of 1909, chap. 17], as amd.)
Both the orders appealed from are, therefore, reversed, with ten dollars costs and disbursements to the appellant in each case, and both motions denied, with ten dollars costs as to each.
Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs.