In re the Assignment of Black

New York Court of Common Pleas

In re the Assignment of Black

13 Daly 21

DecidedDecember 9, 1884

StatusPublished

This text of 13 Daly 21 (In re the Assignment of Black) 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 the Assignment of Black, 13 Daly 21 (N.Y. Super. Ct. 1884).

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Opinion

Allen, J.

The question upon this motion is whether the assignee should be allowed to bid at a sale of certain property of the assigned estate. The doctrine of the general disability of a trustee to become a purchaser at a sale of the trust estate has been well settled. The rule laid down on that subject in the case of Davoue v. Fanning (3 Johns. Ch. 252), has been followed in every case from the date of that decision to the present time. The only [22]*22case in this state on the subject of the removal of this disability appears to be De Caters v. De Chaumont (2 Paige 490). In that case it was held that if the trustee has a personal interest in the sale, which may be sacrificed if he is not allowed to become a bidder, the court will substitute in his place a master or another trustee, if it can be done without injury to the cestui que trust. Here the assignee claims that the assigned estate is indebted to him. The indebtedness is disputed by the assignor. The personal interest of the assignee in the sale is therefore based upon a claim against the estate, the validity and amount of which have not yet been determined. I think a very strong case should be presented for the relaxation of the rale. I do not think the papers here present such a case. When the claim of the assignee has been passed upon and the amount of it determined, he may renew the motion if he so desires.

The present application must be denied, without costs.

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Allen, J.

The question upon this motion is whether the assignee should be allowed to bid at a sale of certain property of the assigned estate. The doctrine of the general disability of a trustee to become a purchaser at a sale of the trust estate has been well settled. The rule laid down on that subject in the case of Davoue v. Fanning (3 Johns. Ch. 252), has been followed in every case from the date of that decision to the present time. The only [22]*22case in this state on the subject of the removal of this disability appears to be De Caters v. De Chaumont (2 Paige 490). In that case it was held that if the trustee has a personal interest in the sale, which may be sacrificed if he is not allowed to become a bidder, the court will substitute in his place a master or another trustee, if it can be done without injury to the cestui que trust. Here the assignee claims that the assigned estate is indebted to him. The indebtedness is disputed by the assignor. The personal interest of the assignee in the sale is therefore based upon a claim against the estate, the validity and amount of which have not yet been determined. I think a very strong case should be presented for the relaxation of the rale. I do not think the papers here present such a case. When the claim of the assignee has been passed upon and the amount of it determined, he may renew the motion if he so desires.

The present application must be denied, without costs.

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13 Daly 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-assignment-of-black-nyctcompl-1884.

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