Tomkins v. Sheehan

6 A.D. 76, 39 N.Y.S. 466

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

The evidence in this case tended to establish that the appellant, without excuse, neglected to discharge the duties of his trust, in failing to collect the only assets of the estate for a long time after the money was awaiting his demand and the tiling of proper proofs, showing his authority to receive it. And it was only after the most persistent urging by plaintiff that appellant took any action, although months before he was notified by the debtor of the estate that the money awaited his call. This evidence was sufficient to warrant appellant’s removal as assignee and to sustain the decision which was made; It was not necessary, nor did the court convict the appellant of mala fides in connection with his trust. But the court found that the appellant unwarrantably delayed and neglected to perform the duties of his trust, and this was sufficient upon which to found a judgment removing him as trustee. (Matter of Mechanics’ Bank, 2 Barb. 446.)

It appears, however, that all the available assets of the estate have been collected, and all that remains to be done is to take and state •the account of the assignee and distribute the fund to those entitled. This may as well be done under the direction of the court, as to burden the estate with the expense of a new assignee.

The judgment will, therefore, be modified by providing that upon the coming in of the report of the referee the moneys of the estate, with which the assignee shall be found chargeable, shall be paid into-court and distributed to those entitled, under its direction. ■

All concurred.

Judgment modified as provided in the opinion and as modified affirmed, with costs to the respondent, payable out of the fund.