177 N.Y. 231 | NY | 1904
So much has been written in the various phases of the proceeding now before us for final review that we need do no more than state our conclusion in the light of a single prefatory observation as to the nature and purpose of the proceeding. Its object is to secure a "a just and fair distribution of the property of the corporation, and of the proceeds thereof, among its fair and honest creditors." (Section 1793, Code Civ. Pro.) The parties now before the court are all "fair and honest" creditors in the same class. Justice and equity, therefore, no less than the express command of the statute, require that there shall be a "just and fair" distribution of the fund among them. Not a distribution among those whose diligence has given direction to the conduct of the proceeding, but among all who are within the descriptive terms of the statute. The statute is our sole guide, and to its peremptory direction, rules of courts and conflicting views of counsel must yield. Our conclusion is that all the unpreferred creditors before the court on this appeal stand upon an equal footing and are entitled to a ratable division among them of the fund in dispute.
The order of the Appellate Division should be modified accordingly, and as thus modified affirmed, without costs to any of the parties.
PARKER, Ch. J., O'BRIEN, BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.
Ordered accordingly. *233