Byrns Shoemakers, Inc. v. Berner

255 A.D. 880, 7 N.Y.S.2d 990, 1938 N.Y. App. Div. LEXIS 5743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1938
• Status: Published

Opinion

Appeal by David Bernstein and Jacob Burstein, offerors, from so much of an order made at Special Term as denies their motion for an order directing Irwin M. Berner, here respondent, to pay over to them $300 of the sum of $500 deposited by them with the assignee as an earnest and deposit for the performance of their composition offer to creditors. Order, so far as appealed from, reversed on the law, with ten dollars costs and disbursements to the appellants, payable from the assigned estate, and motion granted, with ten dollars costs, payable from the same source. Under the undisputed facts, the appellants were entitled to the return of $300 of their deposit, which was made for a specific purpose, subject to the approval of the court which did not approve the offer of the appellants as made. (7 Remington on Bankruptcy [4th ed.], 254; Matter of C. Cicchetti Co., 18 F. Supp. 607, 608; Cassedy v. Johnstown Bank, 246 App. Div. 337, 339; Straus v. T. N. Bank, 122 N. Y. 379, 383.) Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.