246 A.D. 740 | N.Y. App. Div. | 1935
Accounting by the assignee for the benefit of creditors. Order confirming the report of the referee settling the account modified by disallowing the award of $500 for the service of the assignee in continuing the business of the assignor; by reducing the allowance of counsel fee to the attorneys for the assignee from $4,000 to $2,000; by reducing the allowance to the referee for services to the sum of $1,000, and by allowing the appellants’ attorney the sum of $500 for his services on behalf of the objecting creditor, Fein’s Tin Can Co., Inc., and for the benefit of the other creditors. As so modified the order is unanimously affirmed, in so far as appealed from, with costs to the appellants, payable out of the fund. In our opinion, the assignee is not entitled to more than five per cent on the assets, namely, $18,917.02, and is not entitled to additional compensation for conducting the business during the period of thirty days following the assignment, because of the unexplained loss of about $2,000 in the operation of the business during that period and of the diversion of patronage that belonged to that business to a rival concern of which the assignee was president. We are also of opinion that the allowances of $4,000 to the assignee’s attorneys and $3,000 to the referee were excessive and that the refusal of the court to make an allowance to the appellants’ attorney was not a proper exercise of discretion. Present — Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ.