Cohen v. American Surety Co. — 197 N.Y. 547

Majority

p. 547

J. Quintus Cohen, as Trustee of the Estate of John T. Lee, a Bankrupt, Respondent, v. American Surety Company of New York, Appellant.

Headnote

Cohen v. American Surety Co., 132 App. Div. 917 , affirmed.

(Argued December 14, 1909;

decided January 4, 1910.)

Appeal froin a judgment of the Appellate Division of the Supreme Courj; in the first judicial department, entered May 14, 1909, affirming a judgment in favor of plaintiff entered upon a verdict',directed by the court in an action by the plaintiff as trustee in bankruptcy to recover from the surety on the bond of a previously appointed assignee for the benefit of creditors of said bankrupt a certain sum adjudged to be due from said assignee to said trustee in accounting proceedings in the United States District Court.

Charles M. Demond and Henry C. Willcox for appellant.

Michel Kirtland for respondent.

The judgment is affirmed, with costs, upon the authority of our previous decision in the same ease. ( 192 N. Y. 227 .) The proof now establishes that the defendant had notice of the taking of the assignee’s account in the United States District Court, and was given an opportunity to be heard therein, by the service of a summons of the special commissioner appointed by that court to take and state the account, which was sufficient of itself, or, even, within the rules of practice applicable to such proceedings in the Federal courts. (See Gen. Order in Bankruptcy, No. 37, and Rules of Practice for the Courts of Equity of the United States, Nos. 74 and 75.)

Cullen, Ch. J., Gray, Edward T. Bartlett, Vann, Willard Bartlett, Hiscock and Chase, JJ., concur.

Judgment affirmed.

Cases cited

Cohen v. American Surety Co. of New York 192 N. Y. 227 N.Y. 1908-05-19 p. 547