Heywood v. Thacher

Barrett, J.

The case of Mandeville v. Avery, 124 N. Y. 376, 26 N. E. Rep. 951, was not brought to the attention of the court upon the argument of this appeal. But with this case before us the conclusion arrived at would have been the same. The distinction between the two cases is pointed out by the assignee’s counsel. That distinction is a clear one. The effect of the judgment in this case was to set aside the assignment as against the plaintiffs, and against them only. Ho accounting which the court could order in this action would have been binding upon creditors who were not parties to the action. If, for instance, the assignee had been successful upon such accounting in sustaining his claims for the items disallowed, the order in his favor would not have barred other creditors. These other creditors could have questioned these very items in their cases. The rule should operate both ways, and no final decree should be made with reference to the estate generally except such as would bind all parties and release the assignee. In the case of a single plaintiff proceeding solely on his own account, the court can direct such an accounting as will bind both parties to the record, and as may be needful to procure satisfaction of the particular claim sought to be recovered. It may well be doubted whether the court has authority to proceed further in this class of cases without bringing in all other parties in interest or without notice to them. Our construction of the decree in this case removes all embarrassment on this head, and avoids all question as to its validity. Whatever may have been the duty of the referee, the power of the court upon the case being again brought before it to make such final order or judgment as is appropriate cannot be doubted. We think the order already directed by the general term was in substance the order which the court at special term should have made when the case was thus before it upon the entire record, including the decree and the referee’s report, and the motion for a rearguméñt should therefore be denied.