MATTER OF BOWERY NATIONAL BANK

MATTER OF BOWERY NATIONAL BANK. N. Y. Common Pleas; Chambers, January, 1877. Assignee fob Benefit of Cbeditobs.—Accounting. ■ It is in the discretion of the judge to refuse an application by a single creditor to compel an assignee for benefit of creditors to account under the statute ; and ke will do so if adverse proceedings in bankruptcy are pending. Application by a creditor to compel assignee for benefit of creditors to account. On return day of citation, issued by one of the judges of this court, as county judge, on the petition of the Bowery National Bank, a creditor of Wm. B. Duncan, requiring Wm. D. Shipman, assignee, in an assignment by the said Wm. B. Duncan, individually, and by his firm (Duncan, Sherman & Co.), to show cause why he, said assignee, should not render an account of his trust, it appears : I. That several actions are now pending in the courts of this State, brought by judgment creditors of the assignors, to have the assignment declared void, and defended by the assignee. II. The assignors have been adjudicated bankrupts in the United States district court of this district, and an assignee in bankruptcy appointed, who has commenced a suit in equity against this assignee, to have the assigned property decreed to have vested in him by operation of the bankruptcy acts ; that issue has been joined, and a special examiner appointed, who is now taking testimony therein. III. Numerous judgments obtained against the assignors, are claimed to be liens on the assigned property. By reason of these matters, the assignee has been delayed in getting in and disposing of the estate. E. M. Felt (Ruggles & Felt), for the application. William D. Shipman (Shipman, Barlow, Larocque & Macfarland), opposed. [MAJORITY — J. F. Daly.—[After stating foregoing facts.]] J. F. Daly.—[After stating foregoing facts.] There being no evidence that the estate is in danger of being wasted, or that the assignee is not taking good care of the trust property, the grounds presented are sufficient to warrant a dismissal of this application by a single creditor of one of the assignees for an accounting. The assignee is in no position to ask for a general accounting, and a special account for the benefit of this petitioner would lead to no result, and cause great expense. I read the statute as vesting discretionary power in the county judge in compelling an accounting. The section in point (Laws of 1860, chap. 348, § 4, as amended by Laws of 1875, chap. 356, § 2) simply declares that the county judge “ shall have power” to issue citation, and compel accounting. Upon good cause shown upon return of the citation, the prayer of the petitioner may and ought to be denied. Where proceedings are pending to test the validity of the assignment, and also to seek to obtain the trust property by an assignee in bankruptcy, and there is no collusion, the accounting should be postponed until a definite result is reached. Application denied. No costs.