Van Valkenburgh v. Elmendorf

13 Johns. 314

• Court: New York Supreme Court
• Decided: August 15, 1816
• Status: Published

Opinion

.Per -Curiam..

By the first section of the act ♦» for the benefit pf insolvent debtors and. théir creditors,^' passed 3d April,. 1811, the commissioner is directed to order an assignment, of the debtofVest¿te.;eí;<!o three discreet, and sufficient persons,V naming, ihem- By .the 4th section of that act, ft is directed) tliat upon producing a certificate under .the, hands and seals of the assignees.) or any two of .them;” /that the debtor1 has executed an assignment of. all; his. estate, ,&c. then the commissioner ■ shall discharge, the, debtor.: and,' by the 17th section-of the-sanie act, it is provided, “ that a maj.Qtity of the. assignees-in--any. case to be' appointed, as in and by this act is directed, shall have, power and authority,to do'all acts andperfotm'all duties réquired of such.,ássigneé§.” . : ; ■

We incline to the opinion, that a trae construction of that act is, that the commissioner shall appoint three persons as assignees ;■ but that any two of them, by executing.the certificate, and accepting the trust, are competent to perform all the duties, The law does not seem to require, that there shall be three acting trustees. It is. .made thé duty of the commissioner to make a néw appointment' as often as a vacancy Occurs among the assignees; but in this case the vacancy occasioned by the refusal of J\VKins try was not .supplied by a new appointment, and the.office of commissioner was abolished before this suit was instituted.. So that if the two assigne.es cannot act, the trust must' remain unexecuted. It accords with thé letter, and, we think, .with the spirit, of the statute, to uphold the acts of two of the assignees, where a third has been regularly appointed, and refuses to act.

The motion to set aside the report must be denied.

Motion denied.