In re the General Assignment of Venable, 97 N.Y.S. 938

In re the General Assignment of Venable

97 N.Y.S. 938 | N.Y. App. Div. | 1906

Ingraham, J.:

It appears that George W. Tenable and Moses J. Heyman made-a joint assignment to one Robert J. Dean for the benefit of creditors ; that the assignee proceeded with his trust and that subsequently proceedings were commenced to compel the assignee to account. In that proceeding a referee was appointed to take and state the accounts of the assignee. These hearings proceeded before the referee from" November 21, 1899, to December 1, 1900, when the proceeding was submitted to the referee for determination. The referee completed his report and his opinion upon7 the questions submitted to him on June 6,1902. On November 11,1903, Robert J. Dean (assignee) died and on December 2,1903, the referee delivered his report to certain of the creditors, and the same was on January 28, 1904, filed in the office of the clerk of the county of New York. After the referee’s report was filed letters of administration on the estate of the assignee were issued and the proceeding revived, the administratrix being substituted in place of the assignee. Notice of the filing of the report was subsequently-given to the administratrix and others who had appeared, when the administratrix filed an exception to the report upon the ground that the same was void because filed after the death of the assignee. An application to confirm the report having been made at the Special Term, it was denied upon the ground that the proceeding abated by the death of the assignee and this order was affirmed by this court (104 App. Div. 531). It was there held that the proceeding was suspended until it was continued by or against the representative of the deceased assignee, or his successor in interest^ and that the referee, therefore, had no power to make and file a report against the original party who had died, and that the report filed after the death of the assignee was invalid. The position, therefore, at the time of the death of the assignee was that the proceeding had been tried before the referee and had been submitted to him for determination. Before he determined it, however, the assignee died, and the proceeding was then suspended until it was revived by the substitution of the personal representatives of the assignee. The report being a nullity, the question is now before the referee undisposed of, as if no report had been made. No order would seem to be necessary to enable'the referee to proceed with .the reference. The report being a nullity, *510it has no business upon the files of the court;, and it would seem to follow that the opinion of the referee, the minutes of the hearing • and other -papers filed by the referee aré also not properly on the files of the court; and there would seem, therefore, to be no reasonable objection to allowing the party who filed them to withdraw them from the files. All of the proceedings prior to'the death of the assignee, which included the submission of the case to the referee, were not invalidated either under the general provisions of the Code of Civil Procedure or under the General Assignment Act (Laws of 1877,' chap. 466, as amd. by Laws of 1878, chap. ,318). Section 10 of that act provides that “ In case; an assignee shall die during the pendency of any proceeding under this act, or at any time subsequent to the filing of any bond required herein* his personal representative or successor in. office, or both, may be brought in and substituted in such proceeding on such notice (of not less than eight days), as the county judge may direct to be given; and any decree made thereafter shall bind the parties thus substituted as well as the property of such deceased assignee.” We held upon the former appeal that the proceedings before the referee were regular and valid up to the time of'liis making a report, and the position, of the reference, unless it has been terminated, is that the case is" before the referee for determination.

The notice of motion -also asks that the reference should be continued and the hearing therein be resumed, and the reference proceed according to law as if no-referee’s report had been deli vered and filed. In answer certain creditors presented to the -court an affidavit from- which it appears that on May 20, 1905, after an administratrix of Dean had been substituted, she served a notice upon the attorneys for the respective- parties who had appeared in the proceeding that she “ elects to and does end the reference .heretofore ordered herein to Stephen II. Keating, Esq.,” and a similar notice was served by the attorneys for Mary A. Early as executrix of the last will and testament of John Early,, deceased, who was a surety upon the bond'óf the assignee and a party t-o the proceeding. This notice was served under section 1019 of the Code, which provides that a referee’s written report must be either ,filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the'.time when the cause Or matter is finally submitted; other*511wise either party may, before ■ it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. I think this provision applies to- this reference. Section 20 of the General Assignment Act (as amd. by Laws of 1878, chap. 318) provides for an accounting by the assignee. By subdivision 9 of that section the court has power “ to exercise such other or further powers in respect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an- executor or administrator.” By section 20 of the act the court may, in its discretion, order a trial before a referee-of any disputed claim or matter arising under the -provisions of the act. Section 2546 of the Code, which authorizes a surrogate to appoint a referee to examine an account rendered and to hear and determine all questions arising upon the settlement of such an account which the surrogate has power to determine, makes applicable the provisions of the Code of Civil Procedure applicable to a reference by the Supreme Court.

Section 1019 of 'the Code provides that “ Upon the trial by a referee of an issue of fact or an issue of law, or where a ¡reference is made as prescribed in section one thousand and fifteen of this act, his written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter is finally submitted, otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such a case the action must thenceforth proceed as if the reference had not been directed.” Section 1015 provides that “ The court may ‘likewise of its own motion or upon the application of either party, without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without the testimony, after interlocutory or final judgment or where it is necessary to do so for the information of the court, and also to determine and report upon a question of fact arising in any stage of the action, upon a motion or otherwise, except upon the pleadings.” These sections authorize the court in which an action or proceeding is pending to direct a reference to take an account where it is necessary to do so for the information of the court. The accounting in this proceeding was within the provisions of these sections. It Was *512to take and' settle the "account of the assignee foi’ the.informatjpn ■ of the court in distributing the assigned estate, .and by subdivision's 9 of section 2Q of the General Assignment Act, and section 2546, of the Code, the provisions of the. Code of Civil Procedure applicable to a reference in the Supreme Court are made applicable to- such a reference, The proceeding was in the Supreme Court and I -can. see no reason why these two sections should not apply to .such an accounting, the clear intent being to' insure the prompt disposition of proceedings by a referee, It is as. essential that an' assignee’saccounting should- be properly settled as the trial of the issues in an action. <

The case of Bennett v. Pittman (48 Hun, 612) does not apply. In that case there was a reference to take proof of facts'in. a .proceeding to compel an' attorney to pay ov.er money to- his client.. Mr. Justice Babtlett, in delivering the opinion of the court in that case, says : “ If the" referee had been, directed to try an issue of law or an issue of fact or to take an- account or to determine and report • upon a question of fact in an action, the conclusion of the learned' judge below would have been correct, for section 1019 of the Code of Civil Procedure permits a reference to be terminated in any of these cases where, the report is not hied or delivered within sixty days from, tke'time when the case or matter is finally submitted-. But a reference to take proof in -a special proceeding to- compel an attorney to pay over money does not fall within the scope of this section and is not terminable in the manner therein prescribed.”'

1Without passing upon the other questions presented, I think that the reference was terminated by the notice served, and that the court below was correct in refusing to reopen it and direct further proceedings before the referee.

. It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

O’Beien, P. J., Patteesoh, Laughlin and Claeke, JJ,, concurred.

Order affirmed,, with ten dollars costs and disbursements. Order filed.