In re the General Assignment of Gschihey

24 Misc. 495, 53 N.Y.S. 970

• Court: New York County Courts
• Decided: August 15, 1898
• Status: Published

Opinion

Devendorf, J.

It appears from the facts as presented that the sum of $500 was paid by petitioner Jewett W. Brown, to the assignee by a mistake of fact.

It was paid to and received by him by virtue of his position as such assignee; he now .brings that fund with the other money of the estate into court upon this proceeding,- and asks an order distributing and disposing of the fund.

The said money may not be a part of the assigned estate, but this court, the money having been brought into the proceeding, must decree some disposition .of it; that is brought about by the peculiar circumstances of the case.

It is urged by the assignor in line with the decision of the court In Matter of Witmer, 40 Hun, 64, that the County Court has jurisdiction only in respect to'the powers given it by the act and that it is vested with equity power in reference to- the trust and any -matter involved therein only, and that the remedy ¡of the petitioner, Jewett W. Brown, is by action.

I think the case at hand is not parallel with the Matter of Witmer, and that this fund can be disposed of here without opposing or crossing that decision.

This money was paid to the assignee as such upon a judgment rendered in an action wherein he was plaintiff in his representative capacity; the fund was received by the assignee and he now brings it into this court and makes it as far as he can by his account rendered and his previous management of it a fund of the estate.

The very party who by mistake paid the money into the assignee’s hands is rightfully a party to the accounting; he is one of the parties who, under the law, was entitled to notice of the proceedings upon the accounting; at all events he was made a party to it in the petition and by the citation directed to him; and when it becomes necessary for the court to order distribution or payment of the funds alleged by the assignee to be in his hands for that purpose, -the petitioner Jewett W. Brown, already a-party in court, upon the proceeding, asks that $500, which he paid by mistake "to the assignee, be refunded.

If the court has power to make any order whatever as to this. fund it should have, I think, the power to order it paid to the party to whom it belongs. Matter of Morgan, 34 Hun, 217; Matter of Wiltse, 5 Misc. Rep. 114.

The money with the other funds o.f the estate is in the hands of the. assignee, and all parties interested are in court, and an order must, be made with reference to the fund,, and instead of ordering the account amended, by striking .out :$500- of the fund on hand and refusing all mention thereof, or decreeing' it elsewhere, I think the court can best subserve the interest of the parties by placing it with its owner;, and, I think, the statute is broad enough to permit of that result. . _ .-

Therefore, an order may be entered directing the refunding by the assignee of the $500 to the petitioner Jewett W.- Brown.

Ordered accordingly.