In re the Assignment of Reddish — 18 N.Y. St. Rep. 41

Majority

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In the Matter of the Assignment of John Reddish.

(Supreme Court, General Term, Third Department,

Filed September 24, 1888.)

Headnote

Practice—Jurisdiction in proceedings to remove assignee for benefit OF CREDITORS—JUDGE SUCCEEDING OUTGOING JUDGE HAS JURISDICTION ONLY IN CASES WHICH WERE PROPERLY BEFORE HIS PREDECESSOR.

Proceedings for the purpose of removing an assignee for the benefit of creditors was made returnable before a county judge who was an interested party (being counsel and also a director of one of the creditors seeking such removal). He did not make the certificate provided for by Code Civ. Pro., § 342, removing the proceedings, but adjourned the hearing, and before the adjourned day resigned his position as county judge. Another person was appointed county judge to fill the vacancy caused by such resignation, and heard and disposed of the proceedings by removing the assignee who did not appear before him. Held, that the judge appointed to fill the vacancy as aforesaid could only succeed to jurisdiction of such cases as were lawfully in the court when his predecessor resigned. That the order removing said assignee must be reversed.

Appeal from an order of the county court of Montgomery county removing the assignee of John Reddish for non-filing of the bond required by law.

On the 22d day of September, 1887, John Reddish, of the town of Amsterdam, made an assignment for the benefit of creditors to Edward J. Maxwell.

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On the 13th day of October, 1887, the assignee presented to the county judge of Montgomery county, the schedule and inventory, and the judge thereupon took the papers for the purpose of fixing the.bond. The assignee shortly after left the city and did not return until the 22d of October, when he was first informed that the bond had been fixed at $12,000. The county judge had been informed when he fixed the amount of the bond that the assignee was out of town and would not return for some days, to which he said “all right.” The petition upon which the proceeding was based, alleging the non-filing of the bond, was made before the thirty days allowed by law for such filing had expired. The assignee was never ordered to give a bond. The order to show cause why the assignee should not be removed was made and served October 24. The bond had been prepared, and was offered on the first day of November. The assignee had no notice of this pi’oceeding before the order to show cause was served, and no request had been made upon him to file a bond. The motion was finally submitted, after oral argument to Judge West-brook, county-judge, December 3, 1887. On the 1st of January, 1888, . said Westbrook resigned his office without having decided the motion. On the 7fch of January his successor, Judge Borst, sent for the assignee, and stated that he had some papers which were .left by Judge Westbrook undisposed of. The assignee stated that he understood the motion had been finally submitted to Judge Westbrook, and he was there by courtesy alone, and declined to appear in the matter. The assignee never had any notice of the proceedings before Judge Borst. On the 17th of March following, an order was made as of January 7, removing the assignee for “misconduct.” Thereafter the assignee made a motion to vacate this order, upon the ground that he never had any notice of the hearing before Judge Borst, and on other grounds, which motion was denied.

The other facts are stated in the opinion.

N. C. Moak and W. G. Maxwell, for appl’t; George B. White, for resp’t.

Chapter 466, Laws of 1877, in most of its sections, speaks of proceedings as before “ the county judge.” But sections 22, 25 and 36, seem to indicate that the proceedings authorized, by the act are in the county court, and not before the judge as a mere officer. Section 25 especially says that any proceedings under the act shall be' deemed, for all purposes, to be a proceeding had in the court as a court of general jurisdiction. It would seem, therefore, that sections 52 and 53 of the Code, do not apply to this case. We must look at the proceeding as one pending in the county court.

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It appears then that an order to show cause was made by Judge Westbrook, October 27, 1887; returnable November 7. Affidavits seem to have been made and presented after that date, and the matter was kept open till December 3.

On that day, it is insisted by the assignee, the matter was finally submitted. On the other hand, the attorney for the petitioners, says that it was adjourned to January 7, 1888. He says that a memorandum showing such adjournment is attached to his affidavit; but no such memorandum is in the printed papers.

On the first day of January, Judge Westbrook resigned., and Judge Borst was appointed county judge in his place.

On the seventh of January, a message was sent from Judge Borst to the assignee, asking him to come to the judge’s office. The assignee did so, and was informed that Judge Borst had some papers left by Judge Westbrook undisposed of, and wished to know what the assignee proposed to do. The assignee said he understood the matter had been argued and submitted'before Judge Westbrook, and that he did not recognize Judge Borst’s authority, and went away.

The attorney for the petitioners says that he appeared on the seventh of January, before Judge Borst, pursuant to the aforesaid adjournment, and submitted the case for the petitioners.

On the twelfth of March, Judge Borst granted an order entitled of the seventh of January, removing the assignee, which was served the seventeenth.

The assignee then moved on notice before Judge Borst to set aside this order. This was opposed, and was denied May twelfth. From this order the assignee appeals:

The assignee says that on the hearing before Judge West-brook he insisted that Judge Westbrook was disqualified because he was attorney and counsel of the First National Bank of Amsterdam, one of the petitioners, and also a stockholder and director of said bank; which facts the assignee asserts; and he says also that Judge Borst became at the time of his appointment a partner of Judge West-brook in his law business and is one of the legal advisers of the bank. It is denied that Judge Borst is the legal adviser of the bank.

The attorney for the petitioners denies on information and belief that at the time of instituting the petition Judge Westbrook was attorney or counsel of the bank. The other allegations that Judge Westbrook was a stockholder and director do not seem to be denied. And a summons is shown dated October 14, 1887, in which the bank is plaintiff and this assignor defendant, which is signed by Judge Westbrook as plaintiff’s attorney.

It seems then to be admitted that Judge Westbrook was interested in this matter, at the time it was presented to

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him, as being a director and stockholder of the bank, which was one of the petitioning creditors for the removal of the assignee. Thus he was disqualified. Code, § 46; Matter of Dodge Man. Co. 77 N. Y., 107 . It then was his duty to make the certificate provided for by section 342; and therefore (as there was no special judge) the proceeding would have been removed to the supreme court.

Now evidently by the affidavit, even of the attorney for the petitioners, this matter was argued before Judge West-brook, although, perhaps, not fully argued. And it is because he did hear it and did (as that attorney claims) adjourn it for a further hearing, that the petitioners now insist on the authority of Judge Borst. But in the view . above stated, Judge Westbrook was disqualified, and his acts had no validity. It was not necessary that the assignee should make the objection.

A judgment of this general term, a few years ago, was set aside by the court because one of the judges was by marriage related to both the parties within the ninth degree, a fact of which he was ignorant, and which neither of the parties had mentioned on the assignment.

Judge Borst, as successor to Judge Westbrook, could only succeed to jurisdiction of such cases as wero lawfully in the court when Judge Westbrook resigned. This proceeding was not lawfully there at that time. It may be unnecessary to consider what would have been the proper course to follow. It is our impression, however, that whether the proceedings were properly before Judge West-brook or not, yet in the half-argued and half-considered condition of the case, it could have been brought up only by a new notice of hearing served on the assignee or his attorney for some definite time before the county court then held by Judge Borst. The proceeding was like a case half tried. If the attorney for the petitioner had given formal notice that he would present the petition and affidavits previously served at such a time and place, the mat-. ter could have been easily and legally disposed of. It was not for the county judge to give notice to the assignee of his intention to go on with a half-argued case.

The order appealed from must be reversed with ten dollars costs and printing disbursements and the assignee’s motion granted vacating the order of January seventh with ten dollars costs. But this is without prejudice to any similar motion.

Landon and Ingalls, JJ., concur.