264 A.D. 783 | N.Y. App. Div. | 1942
Appeal by an assignee under a general assignment for the benefit of creditors from so much of an order as denies his motion to confirm his account and provides that unless, within five days, he gives a creditor access to the records required, the assignment shall be set aside as fraudulent to such creditor. Order modified on the law by striking from the last ordering paragraph everything after the words, “ Ordered that the motion to confirm the account of the assignee be and the same hereby is denied.” As so modified, the order, in so far as appealed from, is affirmed, without costs. The assignment cannot be set aside summarily on the ground of fraud. The judgment creditor is required to proceed in accordance with the provisions of article 10 of the Debtor and Creditor Law. In the light of all the circumstances, the assignee has not shown such fulfillment of his duties in obtaining from his assignor the books and records that are missing, or a satisfactory substitute therefor reflecting the financial condition of the assignor, as warrants confirmation of his account. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.
