Rogers v. Pell — 166 N.Y. 565

Majority

p. 565

Asa L. Rogers, as Assignee for the Benefit of Creditors of the Rogers Manufacturing Company, Respondent, v. Charles E. Pell et al., Appellants.

Headnote

Assignment for Benefit of Creditors — Power of County Court to Appoint Substituted Assignee. Under section 25 of the Assignment Act (Laws of 1877, ch. 466), a County Court has poxver to appoint a substituted assignee in the place of a deceased assignee for the benefit of creditors of a debtor whose business was conducted and general assignment was recorded in the county, and the power is not confined to the case provided for by section 10 of that act.

(Argued April 15, 1901;

decided April 23, 1901.)

Motion to substitute T. Ellett Hodgskin as substituted assignee for the benefit of creditors of the Rogers Manufacturing Company as plaintiff and respondent in the place of Asa L. Rogers, deceased.

John Larkin for motion.

Thaddeus D. Kenneson, opposed.

Asa L. Rogers, the assignee for the benefit of creditors of the Rogers Manufacturing Company, having

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died, the County Court of Kings county (the county where the business of the assignor was conducted, its property situated and its general assignment recorded) made an order substituting T. Ellett Hodgskin as assignee in the place of said Rogers, deceased. An appeal to this court had at that time been taken in this action from a judgment in favor of the assignee, and this motion seeks to have T. Ellett Hodgskin as substituted assignee for the benefit of creditors of the. Rogers Manufacturing Company substituted as plaintiff and respondent herein in the place of Asa L. Rogers, deceased.

The appellant objects to such substitution, claiming that Hodgskin is not the substituted assignee of the Rogers Manfacturing Company, because of want of power in the County Court to make the appointment, and in support of such contention cites Matter of Tousey ( 2 App. Div. 569 ). That case upheld the appointment by the Supreme Court of a substituted assignee for the benefit of creditors, and the opinion very clearly demonstrates that if there were no provision of the statute whatever authorizing an appointment by the court of an assignee in the place of a general assignee removed by death or otherwise, the power to make such an appointment rests in the Supreme Court. The question was not up for decision whether the County Court could in any other case than that provided for by section 10 of the Assignment Act appoint a substituted assignee, and hence the court was not called upon to examine the provisions of the statute for the purpose of ascertaining whether the provisions- of that law are broad enough to confer such power upon the County Court.

Our conclusion is that such power is conferred by section 25 (L. 18'T'T, ch. 466) which provides:

“Any proceeding under this act shall be deemed for all purposes, including review by appeal or otherwise, to be a proceeding had in the court as a court of general jurisdiction, and the court shall have full jurisdiction to do all and every act relating to the assigned estate, the assignees, assignors, and creditors, and jurisdiction shall be presumed in support of the

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orders and decrees therein unless the contrary he shown ; and after the filing or recording of an assignment under this act, the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein,” inasmuch as the court authorized by that section to exercise the powers of a- court of equity in reference to the trust and all matters-involved therein, is the County Court as appears from an examination of the preceding sections.

Not until the last section of the act is reached is there to be found a reference to the Supreme Court; which section gives to the Supreme Court and the justices thereof concurrent jurisdiction in all powers, rights and duties conferred upon County Courts and county judges.

Parker, Ch. J., O’Brien, Bartlett, Martin, Yann and Landon, JJ., concur; Cullen, J., not sitting.

Motion granted, without costs.