Cohn v. Colby

57 How. Pr. 168

Opinion

Van Vorst, J.

The case of Paret agt. Zickner (16 N. B. R., 315) is an express authority that a secured creditor is entitled to the per centage agreed upon in the composition proceeding, on the deficit left unpaid on realizing such security. In other words, that such claim is not discharged by the composition proceedings.

I do not find any express authority to the contrary. In re Lytle & Co. (14 N. B. R., 457), the judge did, indeed, advance a view in opposition to that above expressed. But the question was not before him. What he decided was, that he had no power to issue an injunction restraining an execution to enforce judgments claimed to have been discharged by the composition proceeding. The other matters discussed did not- in reality affect that question.

I am disposed to follow Paret agt. Zickner, and hold that the plaintiff is entitled to share in the per centage adopted in the composition proceedings, upon any deficiency arising upon the sale.

There should be judgment accordingly.