McLoughlin v. Collins Building & Construction Co. , 104 N.Y.S. 620 ( 1907 )

Lambert, J.:

Elbert B. Hamlin, as trustee in bankruptcy for the' defendant corporation, in an action to foreclose a certain mortgage for $25,000, on which a payment of $10,000 had been made, and who had been permitted to intervene and defend in behalf of the corporation, defaulted upon the trial by reason of a misunderstanding between himself and the attorney for the plaintiff. ■ An order opening tlie default has been granted, upon terms, and this appeal is from so much of the order as requires the trustee to furnish an undertaking' for $5,000 conditioned for the payment to the plaintiff of any deficiency that may arise upon the sale of the premises by reason of the delay occasioned by the default:

There does not appear to be any occasion for the imposing of this personal obligation upon a trustee in bankruptcy, the officer of' a court of the United States, and we reach the conclusion that the order appealed from should be modified by striking out the provision for a bond on the part of the trustee, and as so modified, the order should be affirmed, without costs. x

Patterson, P. J., McLaughlin and Clarke, JJ., concurred; Ingraham, J., dissented.