In re the Accounting of Ross

New York Supreme Court

In re the Accounting of Ross

139 Misc. 334, 248 N.Y.S. 287, 1930 N.Y. Misc. LEXIS 1773

DecidedOctober 31, 1930

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Bluebook

In re the Accounting of Ross, 139 Misc. 334, 248 N.Y.S. 287, 1930 N.Y. Misc. LEXIS 1773 (N.Y. Super. Ct. 1930).

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Opinion

Rodenbeck, J.

The jurisdiction of the bankruptcy^ court over the estate of a bankrupt, who had, within four months of his adjudication, made an assignment for the benefit of his creditors, is exclusive (Bankruptcy Act, § 2; U. S. Code, tit. 11, § 11), and the action of the bankruptcy court cannot be controlled by any settlement of the assignee’s account made by the State court or [335]*335by any allowances made in the proceeding. (Matter of Neuburger, 240 Fed. 947.)

Where an assignment for the benefit of creditors has been made, and thereafter, within four months, the assignor is declared a bankrupt, the assignment is void from the beginning, but this does not invalidate any claim for services or expenses incident to the assignment. (Randolph v. Scruggs, 190 U. S. 533.)

A claim for attorneys’ fees, commissions and allowances may be urged in the State court, but any action taken thereon is not binding upon the bankruptcy court. The proceedings had in connection with the assignment are subject to examination and review by the bankruptcy court.

The State court, however, is not ousted of jurisdiction in relation to the assignment. (Matter of Bieber, 38 App. Div. 639: Matter of Liebermann, 44 id. 148.) It has jurisdiction over its proceedings, although it may have no control over the administration of the estate. The jurisdiction of the Supreme Court over its proceedings is not lost nor its powers paralyzed whenever an adjudication occurs within four months of a general assignment. The proceedings under the general assignment are still pending and the court may settle the account of the assignee and fix the attorneys’ fees, assignee’s commissions, and expenses of administration, and thus wind up the proceedings, subject, as heretofore stated, to the action of the bankruptcy court in relation thereto.

The account of the assignee is settled as presented, and the attorneys’ fees, commissions and expenses will be fixed in the order made in accordance herewith.

So ordered.

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Rodenbeck, J.

The jurisdiction of the bankruptcy^ court over the estate of a bankrupt, who had, within four months of his adjudication, made an assignment for the benefit of his creditors, is exclusive (Bankruptcy Act, § 2; U. S. Code, tit. 11, § 11), and the action of the bankruptcy court cannot be controlled by any settlement of the assignee’s account made by the State court or [335]*335by any allowances made in the proceeding. (Matter of Neuburger, 240 Fed. 947.)

Where an assignment for the benefit of creditors has been made, and thereafter, within four months, the assignor is declared a bankrupt, the assignment is void from the beginning, but this does not invalidate any claim for services or expenses incident to the assignment. (Randolph v. Scruggs, 190 U. S. 533.)

A claim for attorneys’ fees, commissions and allowances may be urged in the State court, but any action taken thereon is not binding upon the bankruptcy court. The proceedings had in connection with the assignment are subject to examination and review by the bankruptcy court.

The State court, however, is not ousted of jurisdiction in relation to the assignment. (Matter of Bieber, 38 App. Div. 639: Matter of Liebermann, 44 id. 148.) It has jurisdiction over its proceedings, although it may have no control over the administration of the estate. The jurisdiction of the Supreme Court over its proceedings is not lost nor its powers paralyzed whenever an adjudication occurs within four months of a general assignment. The proceedings under the general assignment are still pending and the court may settle the account of the assignee and fix the attorneys’ fees, assignee’s commissions, and expenses of administration, and thus wind up the proceedings, subject, as heretofore stated, to the action of the bankruptcy court in relation thereto.

The account of the assignee is settled as presented, and the attorneys’ fees, commissions and expenses will be fixed in the order made in accordance herewith.

So ordered.

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139 Misc. 334, 248 N.Y.S. 287, 1930 N.Y. Misc. LEXIS 1773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-ross-nysupct-1930.

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