Boegler v. Eppley

The assignment to the defendant Eppley was made by Philip Ilowe for the benefit of his creditors. It was set aside as fraudulent upon trial at the Special Term, and a reference directed to take and state the accounts of the person named as assignee in the assignment. That was done by the referee and his report thereupon made to the court. It was brought up for consideration and confirmation, before the Special Term, held at chambers in the city of New York. An objection was taken on the part of the appellant that the motion to confirm the report should be made at a Special Term for enumerated motions, and not at the Special Term held at chambers. This objection was overruled, and the court heard and disposed of the application. In that there was no error, for the judge presiding at the hearing had the power, if he was disposed to exercise it, to entertain the application and to hear and decide it as he did. (People ex rel. Mayor, etc., v. Nichols, 79 N. Y., 583, 589, 590.)

The objection principally made to the confirmation of the referee’s report was on account of the disallowance by him of a specific compensation claimed by the appellant, as assignee under the assignment, for the sum of two hundred and fifty or three hundred dollars stipulated to be paid to him by the assignor in case he would accept the assignment and act as assignee. Upon the hearing of the motion he was allowed commissions, amounting to the sum of ninety-nine dollars and eight cents, and the court rejected the sum claimed by *525tbe assignee under tbis agreement; and that was properly done, for tbe law lias fixed tbe compensation wbicb a person shall receive as assignee under a general assignment for tbe benefit of creditors. That is tbe extent to wbicb it bas been deemed proper or judicious to allow tbe assigned estate to be charged, and tbe assignor bad no authority to charge it further for tbe payment of compensation to tbe assignee to tbe prejudice of bis creditors. If be could bind tbe estate by agreeing for a moderate sum be could for a large amount, and in that manner dispose of bis property in a way not permitted by tbe laws of tbe State. "What be was authorized to do was to execute and deliver a general assignment in good faith for tbe benefit of bis creditors, leaving tbe compensation of tbe assignee to be adjusted as that bad been provided for by tbe legislature. He •could do no more than that, and to have attempted it in the assignment itself would probably have rendered that instrument invalid, by reason of that circumstance, if it bad not been for any other cause. Tbis subject was considered in Matter of Hulburt (89 N. Y., 259), where such an agreement, as is relied upon in tbis case, came up for decision and was disapproved by tbe court. If the assignee is entitled to anything beyond his legal commission, be must look to tbe assignor individually for tbe difference. Many other objections have been presented to sustain tbe appeal, but they do not require special consideration for tbe reason that tbe stipulation of tbe parties, as well as tlieir rights and interests, have been limited to these two points.

Tbe order and direction wbicb was made by tbe court were fully authorized and proceeded, as far as the nature of tbe case required it should go, and it should be affirmed, with ten dollars costs, besides tbe disbursements.

Order affirmed, with ten dollars costs and disbursements.