Majority
p. 356HALL v. WATERBURY. N. Y. Common Pleas; Special Term, January, 1879.
Headnote
Assignee in Bankruptcy. — Security eou Costs.An assignee in bankruptcy is not the trustee of the estate of any debtor within the meaning of the Bevised Statutes.
He is not personally liable for costs except when guilty of misconduct or bad faith.
The non-residence of an assignee in bankruptcy is no reason for requiring security for costs.
Motion by defendant for security for costs.
This was an action by E. Stanley Hall, as assignee in bankruptcy of H. L. Hewlett, against Joseph Phillips and Stephen W. Waterbury, et al., to recover the value of a quantity of merchant tailoring goods taken by Joseph Phillips, a city marshal, from Henry L. Hewlett, under two certain warrants of attachment
p. 357
issued out of the marine court, at the instance of defendants, Waterbury, Smith & Co.
This motion was made for plaintiff to file security for costs, because he had removed from the State after the commencement of the action.
Edward Jacobs (Jacobs Brothers, attorneys), for defendant and motion.
C. J. G. Hall, for plaintiff, opposed.
Motion for security for costs denied. The assignee in bankruptcy is not the trustee of the estate of any debtor within the meaning of the Revised Statutes (Ferriss v. Am. Ins. Co., 22 Wend. 586 ). Nor is he under section 317 of Code of Procedure personally liable for costs, except where guilty of misconduct or bad faith (Reade v. Waterhouse, 52 N. Y. 587 ).
His non-residence is, therefore, not any reason for requiring security for costs.
Cases cited
- Ferriss & Eaton v. American Insurance 22 Wend. 586 p. 357
- Reade v. Waterhouse 52 N. Y. 587 p. 357