Boegler v. Eppley — 2 N.Y. St. Rep. 101

Majority

p. 101

Ferdinand Boegler, respondent, v. Francis M. Eppley, appellant.

(Supreme Court, General Term, First Department,

Filed June 1, 1886.)

Headnote

1. Assignment for benefit of creditors—Compensation of assignee.

The law has fixed the compensation which a person shall receive as assignee under a general assignment for the benefit of creditors. That is the extent to which it has been deemed proper br judicious to allow the assigned estate to be charged. The assignor has no authority to charge it . further for the payment of compensation to the assignees to the prejudice of his creditors.

3. Same—Agreement for more than legal fees would invalidate

ASSIGNMENT.

The attempt to increase the assignee's compensation in the assignment itself would probably render that instrument invalid by reason of that circumstance.

3. Same.

If the assignee is entitled to anything beyond his legal commissions he must look to the assignor individually for the difference.

4. Same—Reference—Practice—Judge sitting in special term held at

CHAMBERS HAS POWER TO CONFIRM REPORT OF REFEREE.

A judge sitting in special term held at chambers in the city of PTew York has the power to confirm the report of a referee appointed to take and state the accounts of a person named as assignee in an assignment.

Appeal from an order modifying and confirming the report of a referee upon the settlement of the accounts of an assignee under a general assignment.

Charles Blandy, for appellant, Ferdinand Boegler.

A. Walker Otis, for respondent, Francis M. Eppley.

The assignment to the defendant, Bppley, was made by Philip Howe for the benefit of his creditors. It was set aside as fraudulent upon trial at the special term,

p. 102

and a reference directed to take and state the accounts of the person named as assignee in the assignment. That was done by him and his report thereupon made to the court. It was brought up for consideration and confirmation before the special term held at chambers in the city of New York. An objection was taken on the part of the appellant that the motion to confirm the report should be made at a special term for enumerated motions, and not at the special term held at Chambers. This objection was overruled, and the court heard and disposed of the application. In that there was no error, for the judge presiding at the hearing had the power, if he was disposed to exercise it, to entertain the application and to hear and decide it as he did. People v. Nichols, 19 N. Y., 583 , 589-90.

The objection principally made to the confirmation of the referee’s report was on account of the disallowance by him of a specific compensation claimed by the appellant as assignee under the assignment, for the sum of two hundred and fifty or three hundred dollars, stipulated to be paid to him by the assignor in case he would accept the assignment and act as assignee. Upon the hearing of the motion he was allowed commissions amounting to the sum of ninety dollars, and the court rejected the sum claimed by the assignee under this agreement. And that was properly done, for the law has fixed the compensation which a person shall receive as assignee under a general assignment for the benefit of creditors. That is the extent to which it has been deemed proper or judicious, to allow the assigned estate to be charged, and the assignor had no authority to charge it further for the payment of compensation to the assignee to the prejudice of his creditors. If he could bind the estate by agreeing for a moderate sum, he could for a very large amount, and in that manner dispose of his property in a way not permitted by the laws of the state. What, he was authorized to do was to execute and deliver a general assignment in good faith for the benefit of his creditors, leaving the compensation of the assignee to be adjusted, as that had been provided for by the legislature. He could do no more than that, and to have attempted it in the assignment itself would probably have rendered that instrument invalid by reason of that circumstance, if it had not been for any other cause. This subject was considered in Matter of Hurlburt ( 89 N. Y., 259 ), where such an agreement as is relied upon in this case came up for decision and was disapproved by the court. If the assignee is entitled to anything beyond his legal commissions, he must look to the assignor individually for the difference.

Many other objections have been presented to sustain.the appeal, but they do not require special consideration, for

p. 103

the reason that the stipulation of the parties, as well as their rights and interests have been limited to these two points. The order and direction which was made by the court were fully authorized and proceeded as far as the nature of the case required it should go, and it should be affirmed with ten dollars costs besides the disbursements.

Brady, J„, concurs.