Calvin Tomkins, Respondent, v. John Sheehan, Defendant, and Matthew Clune, as Assignee of John Sheehan for the Benefit of Creditors, Appellant

Calvin Tomkins, Respondent, v. John Sheehan, Defendant, and Matthew Clune, as Assignee of John Sheehan for the Benefit of Creditors, Appellant. jLssignee for the benefit of creditors — mere delay in collecting assets without pi'oof of mala files is a ground for removal—payment of the fund, into court for distribution, required. Evidence tending to establish the fact that an assignee for the benefit of creditors failed to collect assets of the assigned estate, for a long time after the money was awaiting his demand and the filing of the proper proofs of iiis authority to receive it, warrants the removal of such assignee, irrespective of whether he was guilty of mala fides or not. In such a case, however, where it appears that the delinquent assignee finally collected all the assets and that nothing remained to be done beyond stating his account and distributing the fund, the court refused to appoint another assignee, but directed that the fund be paid into court for distribution. Appeal by the defendant, Matthew Clune, as assignee of John Sheehan for the benefit of creditors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of December, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term. The action was brought by the plaintiff, a creditor of the defendant Sheehan, to procure the removal of the defendant Clune, the assignee for the benefit of the creditors of the said Sheehan, from his position and trust as such assignee, and for the appointment of a new assignee in his' stead. William L. Snyder, for the appellant. Eugene Frayer, for the respondent. [MAJORITY — Per Curiam :] 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.