Lintner v. Long Island Mut. Fire Insurance — 49 N.Y.S. 1105

Majority

p. 1105

(22 Misc. Rep. 305.)

LINTNER v. LONG ISLAND MUT. FIRE INS. CORP. OF NEW YORK.

(Supreme Court, Special Term, Montgomery County.

January, 1898.)

Headnote

Security for Costs—Assignee for Creditors.

Code Civ. Proc. § 3268, subd. 4, authorizing the defendant to require “the official assignee * * * of a debtor” to give security for costs, does not apply to a general assignee deriving his authority for the benefit of creditors.

Action Tby William T. Lintner, as assignee of Watson P. Harvey for the benefit of creditors, against the Long Island Mutual Fire Insurance Corporation of New York. Plaintiff moves to vacate an order requiring him to file security for costs.

Granted.

W. H. Jaycox, for plaintiff.

N. H. Aníbal, for defendant.

The motion is to vacate an order requiring the plain-

tiff to file security for costs. The order was granted under section 3268 of the Code of Civil Procedure. The plaintiff is the general assignee for the benefit of creditors. This action is brought upon a cause of action accruing before the assignment. It is claimed that the order is justified under subdivision 4 of section 3268. The section provides that “the defendant in an action brought in a court of record may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either * *; (3) a person imprisoned under execution for a crime; or (4) the official assignee of a person so imprisoned; the official assignee or official trustee of a debtor; or an assignee in bankruptcy; where the action is brought upon a cause of action, arising before the assignment, the appointment of the trustee, or the adjudication in bankruptcy. * * It is claimed that the plaintiff herein is an official assignee. My attention is not called to any statute in which a like designation is made of an assignee for the benefit of creditors, although such assignees' are frequently referred to. An official assignee, within the meaning of the section quoted, it seems to me, can be well defined to be a person appointed by, or under the direction of, the court, and who derives his authority from some action of the court. There are assignees of this kind, and the provision of the section, read in conjunction with the other provisions, would seem to indicate that the legislature had in mind the assignees of insolvent debtors; for “persons imprisoned under execution” are first mentioned, and immediately follows, “the assignee or official trustee of a debtor.” Under the provisions of the Revised Statutes, the trustees of insolvent debtors were resorted to, for relief from imprisonment; and, under the present provisions of the Code, an insolvent debtor may present his petition, with a schedule of his assets and other matters required by the Code, and, upon certain facts appearing, the court must make an orde.r directing the execution of an assignment by the debtor. Such an assignee may well be termed an official assignee. And, in the same manner, trustees may be appointed of the insolvent debtor, and assignment may be made to him or them. Official assignees were known under the English law, but they were persons who were appointed by the court. As

p. 1106

signees in bankruptcy were known to the federal laws, but they were also elected or chosen by the court, or under the direction of one of its officers. I think it may be said that it was this class of assignees that the provision of the Code referred to, and not one who derives his authority by virtue of a contract or agreement with the debtor. If I am correct, the plaintiff is not within a description of any of the officers who are required to ñle security for costs, and the ex parte order should be vacated.

Motion granted.