In re Parker — 5 Abb. N. Cas. 334

Majority

p. 334

MATTER OF PARKER.

N. Y. Common Pleas;

Special Term, December, 1878.

Headnote

General Assignment for benefit of Creditors. — Discharge of Assignee. — Re-assignment.

An assignee for the benefit of creditors who has accepted and entered upon his duties, but has failed to file his bond, will not be discharged on his own motion, and permitted to reassign the property to the assignor.^[1]

p. 335

Ho should bo removed upon the application of a creditor of the assignor, and held to a strict accountability for the assigned estate.

p. 336

Motion, by assignee for benefit of creditors to be discharged.

p. 337

John L. Parker, on Fovember 1, 1878, executed to Henry A. Marriotte a general assignment for the benefit of his creditors, which was on that day duly filed in the county clerk’s office. The assignee having been unable to furnish sureties, made this application on an order to the assignor to show cause why he should not be discharged, and re-assign the property. Other facts sufficiently appear in the opinion.

Miron Winslow, for assignee and motion.

[After stating the facts.] — It was the duty of Parker to make an inventory of his estate within twenty days thereafter, but if he failed to do so, t"he duty of making such inventory was then devolved by law upon Marriotte. Marriotte could have applied to this court for an order compelling Parker to appear, and disclose under oath all he knew concerning the assigned estate. Instead of doing his duty, Marriotte says that he thought he would wait until Parker furnished sureties for his (Marriotte’s) bond as assignee, but as Parker fails to produce sureties for him, he asks to be discharged, and for leave of the court to reassign the assigned estate to Parker. Marriotte evidently views the assignment as a matter in which only Parker and himself have an interest, and he does not see why Parker’s creditors should be consulted, or be paid.

Instead of granting Marriotte’s application for a discharge, and for leave to reassign the property to Parker, the proper course is to remove him, and. to hold him to a strict accountability for the assigned estate.

p. 338

Any creditor of Parker may now apply to the court for Marriotte’s removal, for an accounting, and for the examination of Parker and his books.

The application of Marriotte is denied.