p. 148In the Matter of the Assignment of Joseph Bieber and Jacob Greenwald, Doing Business under the Firm Name of L. Bieber’s Son & Co., to William Liebermann, for the Benefit of Creditors. William Liebermann, Assignee, Appellant; Abraham Phillips Petitioner, Respondent.Headnote
Banlcruptcy proceedings, and a judgment for waste against an assignee, in fav&r of the trustee—not an ouster of the jurisdiction of a State court to compel the assignee to account.The jurisdiction of the Supreme Court to remove an assignee for the benefit of creditors and compel him to account, is not ousted by the institution of involuntary bankruptcy proceedings against the assignor, nor by the fact that the trustee in bankruptcy, in an action to which the moving creditor was not a party, recovered a judgment against the assignee for waste of the assigned estate.
Appeal by William Liebermann, as assignee of Joseph Bieber and another foi' the benefit of creditors, from an order of the Supreme Court, made at the Dew York Special Term and. entered in the office of the clerk of the county of Dew York on the 10th day of July, 1899, denying the motion of the said assignee to discontinue the proceeding to remove him and compel him to account.
J. Charles Weschler, for the appellant.
Bert Hanson, for the respondent.
Every question which is presented upon this motion was determined by the order made upon the former motion which was affirmed in this court. Do leave to renew the motion was asked, and the Earned justice below might well have denied this application for the reason that it was substantially a renewal of a former motion without leave, even under the liberal rule laid down in Riggs v. Pursell ( 74 N. Y. 370 ). .It is claimed, however, by the appellant that a new element has been brought into the case, because of the judgment in this court in the action brought by the trustee in bankruptcy against Liebermann to recover for the alleged waste
p. 149of tlie assigned estate. The recovery of this judgment does not in the slightest degree affect the jurisdiction of this court to require an accounting by the assignee. It was determined when this matter was before the court on the former appeal that our jurisdiction in this proceeding was not taken away because of the involuntary bankruptcy of the assignors. The recovery "of the judgment by the trustee in bankruptcy against the assignor has no greater effect upon the jurisdiction of this court than did the commencement of the bankruptcy proceeding, and if that did not take away the jurisdiction of this court, nothing that could occur during their pendency could have any greater effect.
Nor is the judgment rendered in the action brought by the trustee in bankruptcy an estoppel against the creditor in this proceeding. He was no party to it, nor did the trustee in bankruptcy represent him, so far as the proceedings under the assignment for the benefit of creditors were concerned. In no aspect of the case did this judgment have any effect upon the rights of the parties.
The order made upon this proceeding, therefore, should be affirmed, with ten dollars costs and disbursements against Liebermann, to be charged against him personally.
Yaw Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements against the appellant Liebermann personally.