In re the Assignment of Townsend

The assignee resists this application to compel him to account, upon four grounds, which will be separately considered.

In the first place, he contends that the stipulations of May, 1873, constitute a full settlement of all claims of the petitioner Baker against Crosby as assignee. It appears, however, from the last clause of the stipulation last quoted, that it was contemplated and understood between the parties that an accounting should be had at some time, and that of whatever' surplus remained after paying the creditors, expenses, .etc., the petitioner should receive his just and fair pro rata share, as one of the assignors. When that accounting was to take place was left to the discretion of the assignee; but unless we are to say that the stipulations amount to an absolute release, we must hold that, in the event of a continuing refusal or neglect of the assignee *79to account, after a reasonable time has elapsed, the assignor has the right to invoke the aid of the court to compel such accounting. The stipulations are not releases ; they must be deemed to constitute an agreement by which it is left to the convenience of the assignee to settle up the estate, and to account and pay over the surplus, and, like agreements to pay, etc., when convenient, the obligation is to do so within a reasonable time (Howe v. Woodruff, 21 Wend. 640). The stipulation by the assignor that he would not take any action or proceeding “ contrary to the terms of the stipulations,” is conditioned, therefore, upon the assignee’s proceeding to settle the estate within a reasonable time. As thirteen years have elapsed since the stipulations were made, it seems that the assignee has had ample time to settle and make up his accounts. He shows nothing to the contrary, but contends that he is under no obligation to account. In this, I think, he errs.

The second ground of objection urged by the assignee is that the petitioner, by reason of the bankruptcy proceedings, has no interest in the surplus, and therefore no standing in court. It appears, however, by the stipulation of May, 1873 (made some years after the bankruptcy proceedings), that the assignee was to pay to the petitioner his pro rata of the surplus, and his interest was thus distinctly recognized. Having received the benefit of those stipulations, the assignee ought not now to be permitted to deny the rights and interest of the other party as therein admitted.

The third ground of opposition to the proceeding is, that the petitioner has not refunded any part of the $2,000 cash and neither of the two notes received on the execution of the stipulations. This ground is based upon the theory that in taking the present proceeding the petitioner is in some way disaffirming or repudiating the stipulations under which he received the cash and notes. But I think it is not necessary to rescind those agreements in order to obtain the accounting: on the contrary, they contemplate an accounting and payment. It is not pretended, besides, that the $2,500 so received was not paid out of the estate and is *80not charged against the petitioner by the assignee in his accounts. In fact there is an admission that it was.

The last ground of defense is undue delay of petitioner in seeking this accounting, and that his laches should estop 'him. The answer to this objection is that the assignee secured, by the petitioner’s attorney’s stipulation, his own time to account, and that it was for him to move, as expressly provided therein, and not for the petitioner.

The order should be affirmed, with $10 costs and disbursements of appeal.

Vah Hoeseh and Bookstaver, JJ., concurred.

Order affirmed, with costs.