In re the Assignment of Phillips

10 Daly 47

• Court: New York Court of Common Pleas
• Decided: February 13, 1880
• Status: Published

Opinion

Van Hoesen, J.

The report is sent back for the following reasons:

1st. There is no proof of the mailing of the notices as required by rule 31. This is indispensable.

2nd. No proof of service of the citation is attached to the papers. Nor does it appear that such proof was presented to the referee. It is not enough to say that proof is on file in the clerk’s office. That will not answer. It must be examined either by the referee or by the court. The regular way is to present the proof to the referee.

3d. There must also be proof as to who among the creditors cited appeared on the return of the citation, for those so appearing are entitled to notice of the hearing before the referee.

The report of the referee for want of these essentials cannot be confirmed. If the defects can be remedied the papers will be remitted to the referee for further proof.

Report referred back.