Hyperlawhypertext legal database In re the Accounting of Danzig 16 N.Y. St. Rep. 708

← Cases

In re the Accounting of Danzig

16 N.Y. St. Rep. 708 Court N.Y.C.P. Decision date 1888-05-11 English

Contents

Majority

p. 708
In the Matter of the Accounting of Simon Danzig, as Assignee.
(New York Court of Common Pleas, General Term,
Piled May 11, 1888.)

Headnote

Assignees—In case of ¡removal foe misconduct abe not entitled to COMMISSION.
Misconduct on the part of assignees cannot he graduated, and an assignee removed for misconduct in office, of no matter what degree, is not
entitled to commissions.
Appeal from an order made by Mr. Justice Allen depriving Mr. Danzig, the assignee, of his statutory commissions.
Richard S. Newcombe and Leopold Wallach, for Danzig, assignee.

The distinction between the authorities relied upon by the appellant and the case at bar is that, in the latter case, the assignee has been absolutely removed; in the former cases the assignee was not removed, but was left to carry out the trust imposed, but was denied an allowance of commissions upon all transactions in abuse of the trust. That seems to be the distinction. Therefore, the ruling in the Gomprecht case, decided by this court (1 N. Y. State Rep., 273) and affirmed by the court of appeals, is applicable. There was an absolute removal, and we quote:

“Misconduct in assignees cannot be graduated and qualified so that in case of removal we may give commissions to one assignee and withhold them from another: and it may now be safely asserted to be the law in this state that an assignee who has been removed for misconduct in office, whatever may be the degree of misconduct, is not entitled to commissions.”

That is res adjudicata, and was so held in the matter of Wolf and of Hyman, and reaffirmed in the Gomprecht case.

If your position were correct there would be no reason why two commissions should not be allowed in this case. If Danzig was entitled to a pro rata share, the party who succeeded him would also be entitled to his commission, and this the courts are not disposed to allow.

The simple fact is that he was removed from his position.

p. 709
This appeal is from a denial of the motion for an allowance, and we think that question has been decided in the court of last resort, in the Gromprecht case.

. The order appealed from, therefore, is affirmed.