Dickinson v. Earle , 54 N.Y.S. 475 ( 1898 )

O’BRIEN, J.

As this appeal comes before us, there is presented ¡only a question between an assignor and an assignee for the benefit ■of creditors. It is made to appear that a large and valuable hotel .property at Richfield Springs is, or is claimed to be, part of the assigned estate. It is shown that all the debts of the assignors mentioned in the schedules are paid or compromised, or that the creditors have consented to the restoration of the assigned estate to the ■assignors. The assignee, notwithstanding that situation, declined -to deliver the property to the assignors, claiming that he is entitled to •retain it until his fees are paid and his accounts settled. He brought -this action for the settlement of his accounts, alleging in his complaint that the assignors entered into an agreement or arrangement •with their creditors, by the terms of which the creditors, respectively, ■agreed to accept one-half of their indebtedness in money, and the bal■ance by notes, in consideration of which said money and notes the ¡said several creditors agreed to assign and transfer their said.indebt-edness to one of the defendants, which arrangement has been carried ■out, and the said several creditors have either received their pay.in full, or have assigned their said claims to one of the defendants, who now claims to own or hold the same as a charge against the assignors. It therefore appears by the plaintiff’s own statement that, so far as creditors are concerned, his duties as assignee have ended. In the answer of the defendants, and in affidavits produced upon the hearing in the court below, it was shown that the assignee had advertised the hotel property for sale; but it also appears that before this motion was made the notice of sale was withdrawn. It further appeared- that the assignee was authorized by the court to open the hotel, and carry on business therein 'during the summer of 1897, and that a large profit accrued therefrom, It was also shown that it was advisable to open the hotel, and carry on the business through the summer of 1898. On those principal facts this motion was made by the assignors to enjoin the assignee from selling the hotel property, and also to compel him to turn over and reconvey to Eugene M. Earle, one of the assignors, all of the assigned estate upon such terms and conditions as to the court might seem proper, and for the-removal of the assignee from his position as such, and for further-relief. The court below ordered that an injunction issue restraining the assignee from selling the property above mentioned, and further directing him to turn over, transfer, and deliver all' the Richfield Springs property to Eugene M. Earle, who- was appointed a receiver of such property, on giving security; and the assignee was directed to turn over to him also all the books and papers relating to such, property, or used in the conduct of the business óf the hotel.

By the plaintiff’s own statement in his complaint, It is shown that his trusteeship survives only for the assignors, but he cannot be compelled to surrender his legal title to the property under the assignment until his accounts are passed, and his claims against the property for commissions settled and determined. The order below virtually destroys his legal title, and to that extent is wrong. But a state of facts is exhibited upon the record conclusively showing that under the relations existing between the assignors and assignee great waste of property and loss to the assignors would have accrued unless the court took charge of the property pending suit, and allowed the business of the hotel as a summer resort to be carried on and continued during the season of 1898. The motion was made that the property be delivered into the hands of the assignors. That could not be done in such way as to prejudice the assignee’s title, but, as-there was no application made by him to run the hotel during the summer of 1898, as no steps were taken by him to utilize the property,, as no one was really interested in it but the assignors and the assignee to the extent of his commission, and as it was necessary to-protect both the assignors’ interest and the title of the assignee, the device was resorted to of appointing the assignor Eugene M. Earle a receiver directly responsible to the court, and he was to be let into the possession of the property pending the suit, and be accountable in the proper way for his administration of it. The case was, therefore, presented of property brought within the control of the court, and in which property, apart from the lien or claim of the assignee for commissions, no one was interested except the assignors; all the creditors secured by the assignment being satisfied or consenting to the assignor resuming possession. It is perfectly manifest that, under such circumstances, to save the loss which would result from the nonuse of the property and its deterioration, it was competent for the court to appoint some one to conduct the hotel business, which the assignee made no effort and asked no permission to carry on. It cannot be doubted that under such circumstances the court had power to appoint a receiver. The property was in danger; great loss was to be apprehended; and it was within the jurisdiction and control of the court. It is not a valid. objection that the assignor Eugene M. Earle was made such receiver. He gave adequate se■eurity. It is in áccordance with the usual practice where there is a contest between parties concerning a going business, and it has been the custom in this district in cases of litigations between co-partners, to appoint one of them a receiver to wind up or carry on the business. From this assignor’s antecedent relations to the hotel, his ■experience and knowledge as a hotel proprietor, he was a proper person to appoint. But as the order appealed from was made, it was entirely too broad. The court should merely have appointed Eugene M. Earle receiver to carry on the -business of the hotel for the summer of 1898, and directed that the assignee let him into possession of the property for that purpose, and no other, and that he account to the receiver for his administration. The order should be modified in that regard.

Concerning the injunction, we think it was properly issued. It is clear that the assignee had undertaken to sell the property. Although he withdrew the advertisement of sale, as he says, there was nothing to prevent his readvertising it; and to guard against his so doing an injunction was proper.

The order appealed from should be modified as above suggested, and, as modified, affirmed, without costs. All concur, except VAN BBUNT, P. J., dissenting.