In the Matter of the Assignment of Jacob Berman to Albert B. Cory for the Benefit of Creditors. Albert B. Cory, Appellant; Samuel Mandelbaum, Receiver, Respondent

In the Matter of the Assignment of Jacob Berman to Albert B. Cory for the Benefit of Creditors. Albert B. Cory, Appellant; Samuel Mandelbaum, Receiver, Respondent. First Department, July 10, 1916. Debtor and creditor •— assignment for benefit of creditors — effect of failure of assignee to record assignment or give bond. An assignee for the benefit of creditors cannot be compelled to deliver the assets to a receiver appointed in supplementary proceedings subsequently instituted merely because he has omitted to record the assignment or give a bond or take the other steps required by statute. The fact that the assignee has so failed to comply with the statute after the assignment does not render the assignment itself void or cause the title to the assets to revert to the assignor. Said requirements of the statute are merely directory. The failure of an assignee to record the assignment and give a bond may furnish sufficient reason for his removal, but in sucha case it is the duty of the court to appoint another assignee. Appeal by the assignee, Albert B. Cory, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lYth day of April, 1916, directing him to pay over to Samuel Mandelbaum, as receiver in proceedings supplementary to execution, the sum of $400 and further removing him as assignee for the benefit of creditors. Appeal by Albert B. Cory, assignee, from a second order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the count)' of New York on the 12th day of May, 1916, punishing him for a civil contempt for having failed to comply with the first order appealed from. William N. Lewis, for the appellant. Morris Jolles, for the respondent. [MAJORITY — Soott, J.:] Soott, J.: These two orders may conveniently be considered together. On December 1, 1915, Jacob Berman, being indebted to various persons, and among others to the corporation of Austin Nichols Company, made an assignment for the benefit of his creditors to one Albert B. Cory, who is connected with the credit department of said corporation. This assignment is not printed in the record, but no question is made as to its form or validity. The assignor’s assets were small and realized only $400, which was received and, at the time the orders appealed from were made, was still held by the assignee. In January, 1916, the respondent Samuel Mandelbaum was appointed receiver of all the chattels and assets of said Jacob Berman in proceedings supplementary to execution instituted to collect a judgment theretofore obtained against said Berman by a firm doing business as Politziner Brothers. Cory, the assignee for the benefit of creditors, omitted to record the assignment as required by statute, or give a bond or take the other steps required of such an assignee. Thereupon a motion was made that he be removed as assignee and and that he be required to turn over all the assets collected by him to the receiver in supplementary proceedings. This motion was granted as made, and from the order granting it the assignee appeals. It is quite apparent that the order, in so far as it directs the assignee to pay over the funds now in his possession to a receiver in supplementary proceedings, is unauthorized and erroneous. By the assignment the title to the assets passed to the assignee, and the fact that he failed to fulfill the requirements of the statute as to things to be done subsequent to the assignment does not render.the assignment itself void or cause the title to the assets to revert to the assignor. Such requirements are merely directory. (Warner v. Jaffray, 96 N. Y. 248, 253; Nicoll v. Spowers, 105 id. 1; Dutchess County Mutual Ins. Co. v. Van Wagonen, 132 id. 398, 402.) It is true that these decisions were rendered under the old “ General Assignment Act,” which has now been superseded by the “Debtor and Creditor Law,” but with regard to the question now under consideration the two statutes are practically identical, so that decisions under the old law are equally applicable to the new. (See Laws of 1877, chap. 466, as amd.; Consol. Laws, chap. 12 [Laws of 1909, chap. 17], as amd.) The failure of the assignee to record the assignment and to give a bond undoubtedly furnished sufficient reason for his removal, if, in the judgment of the court, a simple requirement that the assignment be filed and the bond given would not have sufficiently protected the estate, but if the court decided in its discretion to remove the assignee it was its duty to appoint an assignee or assignees in his place, not to turn the funds over to a receiver for the benefit of a single creditor. (Debtor and Creditor Law, § 8, as amd. by Laws of 1914, chap. 360.) This whole question has now become academic in this case because it appears that Berman, the debtor, has been thrown into bankruptcy. Since the order directing the assignee to turn over the assets to the receiver was unauthorized and contrary to the statute, the assignee was right in resisting its enforcement, and the order punishing him as for a contempt must fall with the order which he refused to comply with. Both the orders appealed from are, therefore, reversed, with ten dollars costs and disbursements to the appellant in each case, and both motions denied, with ten dollars costs as to each. Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred. Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs.