Majority
p. 874Michael J. Hynes, App’lt, v. William A. Campbell, Impl’d Resp’t. (Supreme Court, General Term, Second Department, Filed July 2, 1891.)
Headnote
Assignment nor creditors—Accounting.In the absence of proof of bad faith on the part of an assignee all necessary costs and disbursements incurred by him on his accounting are chargeable to the trust fund.
Appeal from so much of the order confirming the report of the referee herein as allows costs and disbursements to the assignee.
T. F. Hascall, for app’lt; William R. Barricklo, for resp’t.
—The plaintiff is a judgment creditor of Daniel Yan Winkle, one of. the defendants. Yan Winkle assigned to William A. Campbell, the other defendant, for the benefit of his creditors. The plaintiff was a preferred creditor in the order of distribution under the assignment. This action is brought by the plaintiff for himself and others similarly situated for an accounting. A decree has been entered and an appeal is brought by each party. The plaintiff appeals from that part of the judgment
p. 875
which gives seventy-five dollars costs to assignee and which allows him his disbursements. The general rule is, that all necessary costs and disbursements are chargeable to the trust fund. The amount allowed to the assignee was a moderate sum and the expenses were all incurred after the account was filed. There was no evidence of bad faith upon the part of the assignee, even in the particular case where he was decreed to be wrong, so as to make it proper to put the costs upon him personally. Code, § 3246.
The part of the judgment affected by the plaintiff’s appeal, should be affirmed, with costs.
Dykman, J., concurs; Pratt, J., not sitting.