In re the Assignment of Everit

10 Daly 99

• Court: New York Court of Common Pleas
• Decided: June 18, 1881
• Status: Published

Opinion

Van Hoesen, J.

Section 21 was intended to afford to creditors a ready means of tracing property which ought to be applied to the payment of the assignor’s debts, and as was said by Chief Justice Daly in the Matter of Burtnett (8 Daly, 363), “ to aid in the administration of the assignment.” It is altogether foreign to the purposes of the legislature to compel the assignee to produce the assignor’s books, in order to enable a creditor to extract evidence therefrom that will aid him in a litigation, existing or contemplated, not relating to the assigned estate. An insolvent is under no greater obligation than a solvent person to disclose to his adversary the evidence on which he relies. It cannot add to the quantum or the value of the assigned estate to show from the assignor’s books that he intentionally misrepresented the weight of the hides on which he procured a loan from the petitioner, nor ought the assignee to be compelled to exhibit the evidence which he has to show that the petitioner took usury from the assignor.

This application must therefore be denied, but without prejudice to the right of the petitioner to examine the assignor and any other witnesses, as to what property should be followed and applied to the payment of the assignor’s debts. The books of the assignor may be examined in connection with such an examination, but those parts and those entries which relate to the transactions between the petitioner and the assignor will be sealed.

When an action has been brought, the petitioner may obtain any examination or inspection which the Code provides for (Matter of Burtnett, 8 Daly, 363).