10 Daly 57 | New York Court of Common Pleas | 1880
I have not changed the views I expressed upon the argument, though I understand the great hardship of the case. Hulin got no more than Schaller had to convey, and that was nothing at all. Schaller’s transaction amounted simply to a payment of the preferred creditors, and he obtained from them a release. He merely paid them. He bought nothing, and acquired nothing by purchase from them. By the terms of the assignment, what is left after paying the preferred creditors, goes to the non-preferred creditors. The payment of the preferred creditors with the notes which Schaller obtained by fraud and false pretenses from Hulin, discharged the assigned estate from the claims of the creditors so paid, and left it to be distributed among the non-preferred creditors. There is no way in which Hulin can be put in the shoes of the preferred creditors. He was a stranger to the transaction by which they were paid, though Schaller, in making the payments, wrongfully and fraudulently used the notes which he had lent him. Hulin’s claim is against Schaller personally, not against the assigned estate.
The report of the referee is overruled.
Application denied.
Another claim was made under the same assignment by Hilo W. Pember, one of the creditors of the assignor, a portion of .whose claim had been preferred in the assignment. Soon after the making of the assignment, the assignor, Schaller, being then engaged in negotiations with the creditors for a composition, represented to Pember that, in order to enable
At the same time an application was heard to confirm the report of the same referee upon the accounting by the assignee. Objections were made to the account on the ground that the charges by the assignee for professional services of his counsel, especially in contesting the claim of Pember, and charges for the services of a book-keeper, were excessive; and on other grounds which are stated in the following opinion, rendered August 31st, 1881.
Ohauncey B. Bypley and Samuel Jones, for Milo W. Pember, the creditor.
George B. Ashley, for John S. Hulin, and George W. Galinger, for Eeynolds, other creditors.
Thomas IP. Wentworth, for the assignee.
The irregularity in the proceedings of
There is no affidavit of service of the notice to creditors to produce their claims before the assignee, as prescribed by the rules of this court.
It appears affirmatively that the citation was not served upon certain creditors who had filed claims with the assignee. It is true that the referee upon the reference has endeavored to cure this irregularity, but I find no authority in the statute authorizing the referee to usurp the powers of the court. These creditors had the right to be heard upon the application for a reference, and neither the assignee or any other person or court can deprive them of that right. It would seem, therefore, that the order of reference to take and state the accounts was entirely irregular and conferred no authority upon the referee.
It further appears from the papers which have been submitted that the citation was served upon the creditors whom the assignee claims to have served by mail, and it does not appear that there was any authorization by the court that the service should be made in that way. The referee’s report as to the claim of Milo W. Pember seems to me entirely correct, and should be confirmed.
For these reasons the referee’s report cannot be confirmed, and for these, if for no other.
Upon a subsequent referee’s report on the accounts of the assignee, the following opinion was rendered January 9th, 1882.
The fees of the referee are to be taxed by the clerk. If there be dissatisfaction with the taxation made by him, an appeal lies to the court. Though the statute does not prescribe the fees payable to a referee in an assignment proceeding, there has been a general understanding that the same rate of fees shall be allowed as in an ordinary action. In these assignment matters, one thing must be borne in mind—that the duties of a referee do not consist merely in presiding at the examination of witnesses. The most arduous
From my examination of the testimony, it appears to me that Mr. Todd and Mr. G-alinger do not state correctly the part taken by the assignee in resisting the payment of certain claims. The assignee did not dispute the right of the preferred creditors to be paid in the manner prescribed by the assignment. He did not attempt to defeat the execution of the assignment under which he acted, but he did contend that events had taken place since the execution of the assignment which entirely altered the position of those who held the preferred demands. He said in effect: “ Mr. Pember, you have released your claim, and that claim is, therefore, no longer a claim against the estate.” With respect to the claim of John Schaller, the assignee likewise contended that it had ceased to be entitled to the preference which it had by virtue of the assignment. This was not to dispute the validity of the assignment. It was analogous to the action of a tenant, who, though he could not dispute his landlord’s title, could say that his landlord had been paid. The fees of counsel employed to conduct the litigation arising out of those claims should be allowed to the assignee. He was protecting his trust in contesting those .claims, though it turned out that the court did not sustain the views of his counsel as to the law applicable to those cases.
The retainer in the Pember matter ought not, in my opinion, to be allowed. The attorney was regularly employed by the assignee, in the business of the assignment, and, there
In a single case, a fee of twenty-five dollars for bringing a suit in the Marine Court might not be too large, but where a large number of suits are to bo brought, for the purpose of winding up an insolvent estate, and where all those suits are placed in the hands of one man, or of one firm, 1 think a smaller rate of compensation sufficient, especially where all the actions are settled without a trial. I think ten dollars in every case, instead of twenty-five dollars, a sufficient compensation ; and the bill of the attorneys should be reduced accordingly.
The compensation to Hopkins, the book-keeper, does not seem to me extravagant, though it was large enough. Perhaps, if the data had been given me, I might know better than I know now what the charge of Hopkins ought really to have been. With the light that I have, I can do no more than allow the charge to stand.
The report of the referee, as it will be modified by the foregoing suggestions, will be confirmed.
Application granted.