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Tomkins v. Clune

39 N.Y.S. 466 Court N.Y. App. Div. Decision date 1896-06-02 English

Contents

Majority

p. 466
(6 App. Div. 76.)
TOMKINS v. CLUNE.
(Supreme Court, Appellate Division, Second Department.
June 2, 1896.)

Headnote

1. Assignment for Benefit of Creditors—Removal of Assignee.
An assignee will be removed for neglect of duty where it appears that he failed to collect the only asset of the estate for a long time after the
p. 467
money was awaiting his demand, and proofs had been filed showing his authority to receive it, and that he only acted after most persistent urging by creditors.
2. Same—Accounting—Necessity oe New Assignee.
Where there is nothing to be done on the removal of an assignee for neglect of duty except to take and state his accounts, and distribute the fund, a new assignee will not be appointed, but the accounting and distribution will be done under direction of the court.
Appeal from special term, Westchester county.
Action by Calvin Tomkins against Matthew Clune, to remove defendant from his position as assignee for benefit of creditors of John Sheenan, and to require him to account for and pay over to his successor, or to the creditors of the assignor, all moneys and property which have, or which by proper effort and diligence on his part might have, come into his hands. Judgment was entered in favor of plaintiff, and defendant appeals.
Modified.
Argued before BROWN, P. J., and PRATT, CULLEN, BARTLETT, and HATCH, JJ.
William L. Snyder, for appellant.
Eugene Prayer, for respondent.

The evidence in this case tended to establish that the defendant, without excuse, neglected to discharge the duties of his trust, in failing to collect the only assets of the estate for a long time after the money was awaiting his demand and the filing of proper proofs showing his authority to receive it; and it was only after the most persistent urging by plaintiff that defendant took any action, although, months before, he was notified by the debtor of the estate that the money awaited his call. This, evidence was sufficient to warrant defendant’s removal as assignee, and to sustain the decision which was made. It was not necessary nor did the court convict the defendant of mala fides in-connection" with his trust; but the court found that defendant unwarrantably delayed and neglected to perform the duties of his trust, and this was sufficient upon which to found a judgment removing him as trustee. In re Mechanics’ Bank, 2 Barb. 446 . It appears, however, that all the available assets of the estate have been collected, and all that remains to be done is to take and state the account of the assignee, and distribute the fund to those entitled. This may as well be done under the direction of the court as to burden the estate with the expense of a new assignee.

The judgment will therefore be modified by providing that, upon the coming in of the report of the referee, the moneys of the estate with which the assignee shall be found chargeable shall be paid into court, and distributed to those entitled, under its direction.

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