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In re Bluestone

169 A.D. 462 Court Second Department, Decision date 1915-10-08 English

Delivered by Jenks, P. J.:

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p. 462
In the Matter of the Application of Seymour Bluestone, General Assignee for the Benefit of Creditors of Alfred D. Grosser Company, for an Order Directing the People’s National Bank of Brooklyn, New York, to Turn over Assets of the Assignor. People’s National Bank of Brooklyn, New York, Appellant; Seymour Bluestone, as Assignee, Respondent.
Second Department,
October 8, 1915.

Headnote

Debtor and Creditor Law, section 13 — right of creditor to setoff—. unmatured claim against debtor.
Since the enactment of section 13 of the Debtor and Creditor Law, providing that debts of the assignor may be proved and allowed against Ms estate “whether due or not due,” unmatured claims against the debtor . are subject to the right of setoff by a creditor.
Appeal by the People’s National Bank of Brooklyn, New York, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 7th day of June, 1915.
H. W. Hayward, for the appellant.
Bryer H. Pendry, for the respondent.

The bank appeals from an order of the County Court that it pay over to the general assignee for the benefit of creditors of the Grosser Company a deposit with the said bank to the credit of that company. The general assignment was executed on April 19, 1915. At that time this deposit was in the bank. The bank at that time held a promissory note of the said assignor, not due until May 17, 1915. The bank resisted the order upon the ground that it had the right to set off the amount of the said note against the said deposit. This is the sole question of this appeal.

Prior to April 15, 1914, our equitable rule of set off did not apply, because the demand had not matured at the time of the

p. 463
general assignment, for the reason that after the estate had passed to such an assignee for general distribution the former and natural equity disappeared in the superior equities of the general body of creditors, and if the creditor who had no right to offset when such general assignment was made were allowed such right thereafter, he thereby gained a preference. (See Fera v. Wickham, 135 N. Y. 223 , 230; Frank v. Mercantile Nat. Bank, 182 id. 264 .) But chapter 360 of the Laws of 1914 amended the Debtor and Creditor Law (Consol. Laws chap. 12; Laws of 1909, chap. 17) and enacted certain new sections. The new section 13 provides inter alia: “Debts of the assignor may be proved and allowed against his estate which are * '* * (c) or founded upon an open account, or upon a contract, express or implied whether due or not due. In allowing the claims against the estate, in all cases of mutual debts or credits between the estate of the assignor and a creditor the amount shall be stated and one debt shall be set off against the other, and the balance only shall be allowed. ” We think that, as under this statute unmatured claims may be proved, they must, therefore, be subject to the right of setoff as therein provided. The logic of this proposition was pronounced sound by Cullen, Ch. J., in Frank v. Mercantile Nat. Bank (supra, 267). It seems that the Legislature has seen proper to adopt the rule of the Federal courts. (See Frank v. Mercantile Nat. Bank, supra.) The former rule of setoff as applied prior to April 15, 1914, must yield to the statutory law.

The order of the County Court of Kings county is reversed, with ten dollars costs and disbursements.

Carr, Stapleton, Mills and Putnam, JJ., concurred.

Order of the County Court of Kings county reversed, with ten dollars costs and disbursements.

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