Majority
p. 13In the Matter of the Assignment of Merwin & Co. to William S. See for the Benefit of Creditors. [Special Term.] (Decided September 20th, 1878.)
Headnote
Upon an application for a discharge of an assignee and his sureties it must appear that creditors have been advertised for, as provided by section 4 of the Assignment Act, and that a citation to attend the accounting has been issued and served, as provided by sections 11 or 12, and that an accounting has been had, as provided by section 20.Application for the discharge of an assignee under a general assignment for the benefit of creditors.
I do not find any proof that creditors have been advertised for by the assignee under section 4 of the Act of 1877, nor that any citation has been issued under sections 13, 12, 13, &c.
The power possessed by the court or judge to grant a discharge to the assignee and his sureties, can only be exercised upon a regular proceeding for an accounting, and such proceeding must be commenced by service of a citation (§ 20, subd. 6).
If no such citation have been issued, I suggest that counsel apply under sections 11, &c. as amended by the Act of 1878, and if there be no appearance by creditors the report already made will be confirmed.