In re Danzig

New York Court of Common Pleas

In re Danzig

2 N.Y.S. 161, 16 N.Y. St. Rep. 708, 1888 N.Y. Misc. LEXIS 82

DecidedMay 11, 1888

StatusPublished

This text of 2 N.Y.S. 161 (In re Danzig) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Danzig, 2 N.Y.S. 161, 16 N.Y. St. Rep. 708, 1888 N.Y. Misc. LEXIS 82 (N.Y. Super. Ct. 1888).

Pincite

Opinion

Per Curiam.

The distinction between the authorities relied by the appellant and the case at bar is that, in the latter case, the assignee has been absolutely removed. In the former cases the assignee was not removed, but was left to carry out the trust imposed, but was denied an allowance of commissions upon all transactions in abuse of the trust. That seems to be the distinction. Therefore the ruling in the Gomprecht Case, decided by this court, and affirmed by the court of appeals, (102 N. Y. 741,) is applicable. There was an absolute removal, and we quote: “Misconduct in assignees cannot be graduated and qualified so that in case of removal we [162]*162commissions to one assignee and withhold them from another; and it may now be safely asserted to be the law in this state that an assignee who has been removed for misconduct in office, whatever may be the degree of misconduct, is not entitled to commissions.” That is res adjudieata, and was so held in the matter of Wolf and of Hyman, and reaffirmed in the G-omprecht Case. If your position were correct, there would be no reason why two commissions should not be allowed in this case. . If Danzig was entitled to a pro rata share, the party who succeeded him would also be entitled to his commission, and this the courts are not disposed to allow. The simple fact is that he was removed from his position. This appeal is from a denial of the motion for an allowance, and we think that question has been decided in the court of last resort, in the Gompreoht Case. The order appealed from, therefore, is affirmed.

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Per Curiam.

The distinction between the authorities relied by the appellant and the case at bar is that, in the latter case, the assignee has been absolutely removed. In the former cases the assignee was not removed, but was left to carry out the trust imposed, but was denied an allowance of commissions upon all transactions in abuse of the trust. That seems to be the distinction. Therefore the ruling in the Gomprecht Case, decided by this court, and affirmed by the court of appeals, (102 N. Y. 741,) is applicable. There was an absolute removal, and we quote: “Misconduct in assignees cannot be graduated and qualified so that in case of removal we [162]*162commissions to one assignee and withhold them from another; and it may now be safely asserted to be the law in this state that an assignee who has been removed for misconduct in office, whatever may be the degree of misconduct, is not entitled to commissions.” That is res adjudieata, and was so held in the matter of Wolf and of Hyman, and reaffirmed in the G-omprecht Case. If your position were correct, there would be no reason why two commissions should not be allowed in this case. . If Danzig was entitled to a pro rata share, the party who succeeded him would also be entitled to his commission, and this the courts are not disposed to allow. The simple fact is that he was removed from his position. This appeal is from a denial of the motion for an allowance, and we think that question has been decided in the court of last resort, in the Gompreoht Case. The order appealed from, therefore, is affirmed.

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Bluebook (online)

2 N.Y.S. 161, 16 N.Y. St. Rep. 708, 1888 N.Y. Misc. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-danzig-nyctcompl-1888.