Ferriss & Eaton v. American Insurance

22 Wend. 586

• Court: New York Supreme Court
• Decided: March 15, 1840
• Status: Published

Opinion

By the Court,

Cowen, J.

It is supposed that this case .comes within the 2 R. S. 515, § 1, entitling the defendant to security for costs, when the suit is for or in the name of the trustee of any debtor. It is true, that the conventional assignees of a debtor, to collect a sum due to him and pay it out to a creditor or creditors, may in some sense be considered his trustees, and so may every agent or bailee of the debtor for such a purpose, and especially assignees of all his property in possession and action for a like purpose; yet I apprehend the statute was not intended for cases of voluntary conventional assignments, but rather for a class of trustees created by operation of law under the various-statutes concerning insolvent debtors, the provisions of which are mainly comprehended in 1 R. S. pt. 2, ch. 5, tit. 1. In the article 8th of the title, 1 R. S. 796, 2d ed. §, 1, all assignees and trustees under any authority conferred by any of the provisions of the preceding articles of that title, are thereby declared to -be trustees of the estate of the debtor, &c. for the benefit of creditors ; and by the same article, they are invested with rights to have demands concerning the estate of the debtor, heard and decided summarily before referees. In some cases they may bring suits in the name of the insolvent, as well as in their own names. They might in a few cases have done so without any express statutory provision, but the right is moreover expressly recognized by the 7th section. In such a case, security for costs would be very reasonably demanded, though the ground óf requiring it where they sue in their own names, and reside in the state, is not so obvious. Suffice it to say, however, that the provision for security now in question may be satisfied by applying it to trustees proper of a debtor declared so by- the statute. There is no reason for giving the provision an enlarged construction. In the case at bar, one of the nominal plaintiffs resides within our jurisdiction, and, in case of his being unable to pay costs, the assignees can be resorted to by attachment. The remedy is ample; and independent of the plaintiffs being trustees, it is a sufficient answer under the statute that any one of them resides within the jurisdiction of this court. 2 R. S. 515, § 1, 2d ed.

Motion denied, with costs.