Colonial Bank v. Sutton — 79 Misc. 244

Majority

p. 244

The Colonial Bank, Respondent, v. George A. K. Sutton, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Headnote

Assignment — receiver’s fees before earned.

An assignment of a receiver’s fees and allowances before they are earned is against public policy, and the legal effect thereof is properly raised by the denial of an allegation that said fees were duly assigned.

Appeal by the defendant from a judgment of the City Court of the city of ¡New York, rendered in favor of the plaintiff by the court, a jury having been waived, in an action upon an assigned claim for receiver’s fees and allowances.

John E. ¡Roeser, for appellant.

Jesse S. Epstein, for respondent.

The plaintiff claims to be entitled to the fees and allowances of one Frederick E. Sutton as receiver of the Van ¡Kannel Revolving Door Company. The basis of plaintiff’s alleged title to these fees is an assignment made by the said Frederick E. Sutton prior to the time when the said fees were earned. This assignment, in my opinion, passed no title to the fees. The receiver, like an executor, occupies a position of trust and the fees earned by him are inseparable from his position. “ Until ascertained and liquidated at the time and in the manner authorized by law, the commissions are not subject to the executors’s disposal, but the right to them is inchoate and upon grounds of public policy unassignable.” Matter of Worthington, 141 N. Y. 9 . The learned trial justice recognized that the assignment was illegal and against public policy but gave judgment nevertheless in favor of the plaintiff on the ground that no such defense was pleaded and that the defense of

p. 245

illegality was a personal defense. The conclusion, I think, involves an error. On the ground of public policy the law has made the inchoate right to fees non-assignable. This quality is inherent in the subject matter of the assignment and no title can pass by the assignment. The defense that the assignment is illegal is, therefore, not personal to the receiver, and the issue of the legal effect of the assignment is properly raised by a denial of the allegation that the fees were duly assigned.

Judgment should be reversed and judgment directed for the defendant, with costs in both courts.

Seabury and Page, JJ., concur.

Judgment reversed and judgment directed for defendant, with costs in both courts.

Cases cited

In re the Judicial Settlement of the Accounts of Worthington 141 N. Y. 9 N.Y. 1894-01-16 p. 244