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In re the Assignment of Phillips

10 Daly (N.Y.) 47 Court N.Y.C.P. Decision date 1880-02-13 English

Delivered by Van Hoesen, J.

Contents

Majority

p. 47
In the Matter of the Assignment of Rachel Phillips to Bernhard E. Steinhardt for the Benefit of Creditors.
[Special Term.]
(Decided February 13th, 1880.)

Headnote

Upon an accounting by an assignee for the benefit of creditors, the report of the referee should show proof of the service upon creditors of notice to present claims, and of the citation upon the accounting, and who of them appeared on the return of the citation.
Application to confirm the report of a referee upon an accounting by an assignee under a general assignment for the benefit of creditors.
The facts are stated in the opinion.

The report is sent back for the following reasons:

1st. There is no proof of the mailing of the notices as required by rule 31. This is indispensable.

2nd. No proof of service of the citation is attached to the papers. Nor does it appear that such proof was presented to the referee. It is not enough to say that proof is on file in the clerk’s office. That will not answer. It must be examined either by the referee or by the court. The regular way is to present the proof to the referee.

3d. There must also be proof as to who among the creditors cited appeared on the return of the citation, for those so appearing are entitled to notice of the hearing before the referee.

The report of the referee for want of these essentials cannot be confirmed. If the defects can be remedied the papers will be remitted to the referee for further proof.

Report referred back.