Charles McLoughlin, Respondent, v. The Collins Building and Construction Company and Others, Defendants, Impleaded with Elbert B. Hamlin, as Trustee in Bankruptcy of The Collins Building and Construction Company, Appellant

Charles McLoughlin, Respondent, v. The Collins Building and Construction Company and Others, Defendants, Impleaded with Elbert B. Hamlin, as Trustee in Bankruptcy of The Collins Building and Construction Company, Appellant. First Department, May 24, 1907. Practice — when trustee in bankruptcy not required to give personal • undertaking as condition for opening default. A trustee in bankruptcy for a 'defendant corporation who by reason of á misunderstanding has defaulted in an action of foreclosure should not he required to give a personal undertaking to pay any deficiency that may arise, by reason of the delay occasioned by the default "as a condition for opening it. Ingraham, J'., dissented, with opinion! Appeal by the, defendant, Elbert B. Hamlin, as trustee,etc., from so much of 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 16tli day of April* 1907, as imposes conditions upon granting the defendant’s motion to opén a default, and to set aside an inquest. ■ Charles Goldzier, ior tLj appellant. Van Mater Stillwell, for the respondent. [MAJORITY — Lambert, J.:] Lambert, J.: Elbert B. Hamlin, as trustee in bankruptcy for the' defendant corporation, in an action to foreclose a certain mortgage for $25,000, on which a payment of $10,000 had been made, and who had been permitted to intervene and defend in behalf of the corporation, defaulted upon the trial by reason of a misunderstanding between himself and the attorney for the plaintiff. ■ An order opening tlie default has been granted, upon terms, and this appeal is from so much of the order as requires the trustee to furnish an undertaking' for $5,000 conditioned for the payment to the plaintiff of any deficiency that may arise upon the sale of the premises by reason of the delay occasioned by the default: There does not appear to be any occasion for the imposing of this personal obligation upon a trustee in bankruptcy, the officer of' a court of the United States, and we reach the conclusion that the order appealed from should be modified by striking out the provision for a bond on the part of the trustee, and as so modified, the order should be affirmed, without costs. x Patterson, P. J., McLaughlin and Clarke, JJ., concurred; Ingraham, J., dissented. [DISSENT — Ingraham, J.] Ingraham, J. (dissenting): It is conceded that the defendant as trustee in bankruptcy has no assets in his hands, but is seeking to defend a mortgage made by the bankrupt for the benefit of creditors. They should certainly be responsible for any damages caused by the delay in foreclosing tlie mortgage in the event that the defense is unsuccessful. The trustee in bankruptcy being in default I think it was proper for the court to compel the creditors to give such security as would indemnify the plaintiff for the damages which would be caused by the delay if the defense proved unsuccessful. The order should be affirmed. Order modified as directed in opihion, and as modified affirmed, without costs.