In re the Assignment of Parker — 10 Daly (N.Y.) 16

Majority

p. 16

In the Matter of the Assignment of John L. Parker to Henry A. Marriotte for the Benefit of Creditors.

[Special Term.]

(Decided December 5th, 1878.)

Headnote

Where, after an assignor for benefit of creditors has failed to file the required inventory of his estate, the assignee also neglects to file such inventory, and to give a bond, the assignee should not, on his own motion, be permitted to re-assign the assigned property to the assignor and be discharged. The proper course is to remove him and hold him to account for the assigned estate.

Application by an assignee under a general assignment for the benefit of creditors for his discharge.

The facts are stated in the opinion.

Miron Winslow, for the application.

On the first of November, 1878, Parker made an assignment to Marriotte, which was, on that day, duly filed in the office of the county clerk. It was the duty of Parker to make an inventory of his estate within twenty days thereafter, but if he failed to do so, the duty of making such inventory was then devolved by law upon Marriotte. Marriotte could have applied to this court for ara order compelling Parker to appear, and to 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 provided 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 re-assign 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 re-assign the property to Parker, the proper course is to remove him and to hold him to a strict

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accountability for the assigned estate. 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.

Application denied.