p. 554Julien T. Davies, as Receiver, etc., App’lt, v. James D. Fish et al., Resp’ts.(Supreme Court, General Term, First Department,Headnote
Parties—Action against an assignee—When creditor allowed to INTERVENE.In an action brought against an assignee for the benefit of creditors to recover property, which the assignee claims to hold by virtue of the assignment it is discretionary with the court, whether it will allow a creditor of the assignor to intervene and defend the action. This discretion, however, should not be exercised unless some misconduct upon the part of the assignee is shown. ¡
Appeal from order of special term allowing certain parties to intervene and defend this action.
W. B. Hornblower, for app’lt; A. JET. Alker and G. W. Cotterill, for resp’ts.
This was an action brought by the plaintiff as receiver of the assets and effects of G-rant & Ward, against John H. Morris; as assignee, for the benefit of the creditors of James D. Fish, to recover certain property, which the said assignee claimed to hold by virtue of the assignment to him.
p. 555The petitioners were creditors of James D. Pish and seek to intervene and defend this action upon the ground that their rights as creditors of James D. Pish might be affected by the result of this litigation. The learned court below granted this application and from the order thereupon entered this appeal is taken. The granting of the order was at best a matter of discretion, and such discretion, should not have been exercised, unless some misconduct upon the part of the assignee was shown. In the case at bar no such claim is made. The case of
Chandler v.
Powers, which is cited to support this application was not analogous. In the latter case the validity of the assignment itself was directly attacked, and the preferred creditors were allowed to come in and defend, upon the ground that their rights under the assignment were directly involved.
In the case at bar the action is simply to recover certain property in the hands of the assignee and claimed by the plaintiff. If the petitioners have the right to intervene in such a case then every creditor has a right to be made a party, whenever an action is brought to enforce a claim against the assignee of an estate.
This rule cannot prevail, because actions of that kind cannot be incumbered by any numbers of defendants who may seek to intervene under these circumstances, without there being something to show dereliction of duty upon the part of the assignee.
The order appealed from should be reversed, with costs and disbursements.