In re the Assignment of Gouy

13 Daly 413

• Court: New York Court of Common Pleas
• Decided: December 21, 1885
• Status: Published

Opinion

Van Hoesen, J.

Mrs. Durand is a preferred creditor, and it was not necessary for her, therefore, to present her claim to the assignee. The assignment made it the duty of the assignee to pay the claim, whether presented or not. Mrs. Durand was, therefore, “ one of the parties interested in the fund,” and as such, service of the citation should have been made upon her (L. 1877 c. 464 § 13). A preferred creditor, not being under obligation to present his claim, is not deprived of his right to notice of the accounting by the clause of section 13 that provides that “ if the time limited by due advertisement for presentation of claims has expired before the issue of the citation, creditors who have not duly presented their claims need not be served.” Where a right to participate in the assigned estate must be proved by the creditor, his failure to give notice to the assignee of the existence of his claim is a good reason for leaving him out of the accounting, as well as out of the distribution of the assigned estate. This the statute provides for. Mrs. Durand, not having been notified, is now entitled to question the assignee’s account, to attack it before the referee, and to demand from the assignee a full account of his stewardship. The expenses of the new hearing before the referee must be borne by the assignee personally, as it is his fault that Mrs. Durand did not receive notice of the. accounting already had. An order may be made remitting the accounting to the referee, with instructions to give Mrs. Durand the same opportunity that she would have had if she had appeared at the first hearing before him.

The exceptions to the report, and the objections to the account, are not now considered. They will be open to examination when the supplemental report comes up for consideration.

Decree opened and report remitted to referee.