Dexter v. Adler — 59 N.Y. St. Rep. 443

Majority

p. 443

Samuel P. Dexter et al., Resp’ts, v. Louis Adler, as Assignee, etc., et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March, 1894.)

Headnote

Appeal—Record.

"Where it is stipulated by counsel that the record presented on appeal contains all the papers upon which the court below acted in making the order appealed from, but it is apparent that such is not the case, and there is nothing presented which shows that the court was wrong in the conclusion which it reached, the order should be affirmed.

Appeal by the defendant, Louis Adler, from that portion of an order of the supreme court, made at the New York special term on the 27th day of June, 1888, and entered in the office of the clerk of the county of New York, sustaining the exception of the plaintiffs to the allowance by the referee of commissions to the defendant as assignee.

A, Blumenstiel, for app’lts; F. Bien, for resp’ts.

On the 5th of October, 1883, the firm of Adler Bros. & Newbower made an assignment for the alleged benefit of their creditors, to the defendant Louis Adler. An action having been brought by the plaintiffs to set aside the assignment, such proceedings were had that a judgment was entered therein on the 24th of May, 1886, setting the same aside, and appointing a receiver and a referee to take and state the accounts of the assignee. Such proceedings were subsequently had that in February, 1888, the referee made a report, to a portion of which report exceptions were filed, and in J une, 1888, an order was entered confirming the report except as to that part thereof which

p. 444

allowed the assignee’s commissions. An appeal was taken from that portion of the order which disallowed the commissions, and nearly six years thereafter the appeal seems to be brought on for argument.

Although it is stipulated by the counsel for the respondents and appellants that the papers presented upon this appeal contain all the papers upon which the court below acted in making the order, it is apparent that such is not the case; and there is nothing presented upon this record which shows that the court was wrong in the conclusion which it reached.

It is true that the record states that the only question before the court on this appeal is whether the assignee is entitled to commissions as- such, where the assignment is set aside on the ground of the assignor’s fraud only, but it does not appear from the papers before us whether any such record was presented to the court below or not, and, therefore, the order should be affirmed, with coáts.

O’Brien and Follett, JJ., concur. v

Order affirmed, with costs.