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Death of assignee. § 10. In case an assignee shall die during the pendency of any proceeding under this act, or at any time subsequent to the filing of any bond required herein, his personal representative or successor in office, or both, may be brought in and substituted in such proceeding on such notice (of not less than eight days), as the county judge may direct to be given; and any decree made thereafter shall bind the parties thus substituted as well as the property of such deceased assignee, provided, however, that if such assignee die subsequent to the filing of his bond and before any proceedings may have been had thereunder, then the surety on such bond may apply to the county judge for an accounting, who may, on such terms as to him seem just and proper, appoint another assignee and release such surety.
Accounting. § 11. A citation may be issued to all parties, interested in the estate assigned, as creditors or otherwise, requiring them to appear in court on some day therein to be specified, and to show cause why a settlement of the account of proceedings of the assignee should not be had, and if no canse be shown, to attend the settlement of such account. The county court must issue all citations mentioned in this act which must be returnable in court. It may issue a citation on the petition of an assignee, at any time after the assignment or on petition of a creditor, or an assignee's surety, or an assignor, at any time after the lapse of one year from the date of such assignment, or where an assignee has been removed and ordered to account as hereinbefore provided. [Thus amended by L. 1878, ch. 378.] 1 Abb. N. C., 404 ; id., 399; 64 N. Y., 1; 67 id., 542;
75 N, Y., 187 ; 8 Daly, 190 ; 23 Hun, 91; 10 Daly, 52, 57 ; 23 W. D., 309; 10 Daly, 31 ; 26 Hun, 214 ; 34 Hun, 217; 19 Abb. N. C.,
177; 44 Hun, 298. Citation. § 12. A citation issued on the petition of a creditor may be addressed to and served on the assignee alone, but on or after the return of such citation the assignee may have a general citation issued to all parties interested.
26 Hun, 214.
Service of citation. S 13. A citation to all persons interested must be served on all parties other than the petitioner who are interested in the fund, including assignors, assignees and their sureties, except that if the time limited by due advertisement for presentation of claims has expired before the issue of the citation, creditors who have not duly presented their claims need not be served. In case the creditors of such assignor, who have proved their claims, exceed twentyfive in number, then the county judge, upon proof by affidavit that such creditors exceed such number, may by order direct such citation to be served on each creditor who has proved his claim, by depositing a copy of the same, at least thirty days prior to the return day thereof, in the post-office at the place where the assignee or assignees, or either of them, reside, duly inclosed and directed to each of such creditors, at his last known post-office address, with the postage prepaid ; and by publishing such citation once a week for at least four weeks prior to such return day in one or more newspapers, to be designated by such county judge as most likely to give notice to such creditors. [Thus amended by L. 1878, ch. 318.] 13 Daly, 413.
Service of citation. $14. A citation personally served within the county of the judge or an adjoining county must be so served at least eight days before the return thereof; if in any other county, at least fifteen days before the return thereof.
Service by publication. $ 15. The county judge may direct service to be made by publication when he is satisfied by affidavit or verified petition either that the person to be so served is unknown, or that his residence cannot, after diligent inquiry, be ascertained, or that he cannot, after due diligence, be found within the state. The order for such service must direct service of the citation upon such person to be made by publication thereof in one newspaper to be designated by the county judge as most likely to give notice to the person to be served, and also, if it appear that any such person resides without the state, then in the state paper for such length of time as he may deem reasonable, not less than once a week for six weeks, and that a copy of the citation be forth with deposited in the post-office duly enclosed and directed to each person so served, at his last known place of residence or post-office address, and the postage paid thereon, at least thirty days before the return day thereof.
Personal service without the state. § 16. When publication has been ordered, personal service without the state made if within the United States at least thirty days, or without the United States, at least forty days before the return day is equivalent to publication and mailing.
Service on minors, etc. § 17. Personal service upon minors and persons incompetent shall be made in the manner prescribed by law for the service of citations issued by a surrogate, in case of final accounting.
On joint creditors. 8 18. Personal service upon one of two or more creditors who claim as co-partners or otherwise as joint creditors shall be equivalent to personal service on all, and voluntary appearance either in person or by attorney shall be equivalent to personal service.
Appearance without service. $ 19. On the return of a citation to all parties interested, any person claiming an interest, although not served, may appear and become a party on duly presenting his claim. 8 Daly, 119.
Power of county court on accounting. $ 20. On a proceeding for an accounting under this act, the county court shall have power: [Thus amended by L. 1878, ch. 318.]
1. To examine the parties and witnesses on oath in relation to the asssignment and accounting and all matters connected therewith and to compel their attendance for that purpose and their answers to questions, and the production of books
2. To require the assignee to render and file an account of his proceedings, and to enforce the same in the manner provided by law for compelling an executor or administrator to comply with a surrogate's order for an account.
3. To take and state such account, or to appoint a referee to take and state it; and such referee shall have the powers enumerated in subdivision one of this section.
4. To settle and adjudicate upon the account and the claims presented, and to decree payment of any creditor's just proportional part of the fund, or, in case of a partial accounting, so much thereof as the circumstances of the case render just
5. To discharge the assignee and his surety at any time, upon performance of the decree, from all further liability upon matters included in the accounting, to creditors appearing and to creditors not having appeared after due citation, or not having presented their claims after due advertisement.
6. On proof of a composition between the assignor and his creditors, to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited, and to authorize the assignee to release the assets to the assignor ; provided, however, that if there be any creditors not assenting to the composition, the court shall determine what proportion of the fund shall be paid to or reserved for creditors not assenting, which shall not be less than the sum or share to which they would be entitled if no composition had been made, and may decree distribution accordingly. [This subdivision thus amended by L. 1878, ch. 318.]
7. To adjourn the proceedings from time to time, issue further cita ons if necessary, and amend the petition and proceedings thereon before decree in furtherance of justice.
8. To punish as for a contempt any disobedience or violation of any order made or process issued in pursuance of this act or the acts hereby amended, and to
restrain by arrest and imprisonment any party or witness when it shall satisfactorily appear that such party or witness is about to leave the jurisdiction of the court, and to take bail to secure the attendance of such party or witness, to be prosecuted under the order of the court in case of forfeiture by and for the benefit of the party in whose interest such examination shall be ordered.
9. To exercise such other or further powers in respect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an executor or administrator. 2 Abb. N. C., 379; 8 Daly, 75; 8 Daly, 190 ; 78 N. Y., 259; 79 N. Y., 302; 81 N. Y., 421 ;
17 W. D., 167 ; 22 W. D., 13, 73; 9 Daly, 68, 220; 10 Daly, 13, 67, 104, 128, 141 ; 23 Hun, 188; 26 Hun, 214, 258; 30 Hun, 151, 195 ; 33 Hun, 557; 34 Hun, 219, 504; 36 Hun, 134 ; 40 Hun, 64; 87 N. Y., 337; 99 N. Y., 145, 539 ; 27 Hun, 508 ; 44 Hun, 297; 13 Daly, 21,
24, 181, 373, 481, 105, 220 ; 45 Hun, 552; 105 N. Y., 56, 256, 476, 619. Examination of witnesses, books, etc. $ 21. The county judge may also, at any time, on petition of any party interested, order the examination of witnesses and the production of any books and papers by, any party or witness before him or before a referee appointed by him for such purpose, and the evidence so taken, together with books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office, and may be used in evidence by any creditor or assignee in any action or proceeding then pending, or which may hereafter be instituted. No witness or party as above provided shall be excused from answering on the ground that his answer may criminate him, but such answer shall not be used against him in any criminal action or proceeding. 15 W. D., 110; 16 Abb. N. C., 316 ; 20 Daly, 18, 31, 99, 115; 36 Hun, 134 ; 99 N. Y., 539; 19
Abb. N. C., 94 ; 13 Daly, 26. Effect of orders and decrees; clerk to keep assignment book. § 22. All orders or decrees in proceedings under this act shall have the same force and effect, and may be entered, docketed and enforced and appealed from, the same as if made in an original action brought in the county court. And all proceedings under this act shall be deemed to be had in court. The said court shall always
for proceedings under this act. The county judge when named in this act, shall, in such proceedings, be deemed to be acting as the court. The clerk of the court shall keep a separate book, in which shall be entered each case, the date and place of record of the assignment, and a minute of all proceedings therein, under this act, with such particularity as the court shall direct by general order. He shall record therein at length the orders and decrees of the court, settling, rejecting or adjusting claims, and directing the payment of money, or releasing assets by the assignee, and removing or discharging the assignee and his sureties, and such other orders as the court shall direct by general order. The said clerk shall securely keep the papers in each case in a file by themselves, and shall be entitled to a fee of one dollar for filing all the papers in each case, and entering the proceedings in the minute book, and fifty cents, to be paid by the assignee, unless otherwise directed, for recording each order or decree required by this act or the general order of the court. [Thus amended by L. 1878, ch. 318.] 44 Hun, 197; 10 Daly, 33 ; 99 N. Y., 145.
Sale or compromise of debts. S 23. The county judge of the county where the assignment is recorded may, upon the application of the assignee and for good and sufficient cause shown, and upon such terms as he may direct, authorize the assignee to sell, compromise, or compound any claim or debt belonging to the estate of the debtor. But such authority shall not prevent any party interested in the trust estate from showing upon the final accounting of such assignee that such debt or claim was fraudulently or negligently sold, compounded or compromised. The sale of any debt or claim, heretofore made in good faith by any assignee, shall be valid, subject, however, to the approval of the county judge; and the assignee shall be charged with, and be liable for, as part of the trust fund, any sum which might or ought to have been collected by him. [Thus amended by L. 1885, ch. 464.]
18 Hun, 232; 8 Daly, 89.
Papers where filed in New York; judge to act. 8 24. In the city and county of New York all papers except assignments, which by this act are required to be hereafter filed or recorded in the county clerk's office shall be filed or recorded in the office of the clerk of the court of common pleas of said city and county; and any judge of said court may exercise all the powers of a county judge for said county for the purposes of this act, and any act or proceeding commenced or returnable before, or instituted or ordered by, one of the judges of said court, may be heard continued or completed, by or before any other of them. 64 How. Pr., 353; 10 Daly, 148; 99 N. Y., 539.
Jurisdiction. S 25. Any proceeding under this act shall be deemed for all purposes, including review by appeal or otherwise, to be a proceeding had in the court as a court of general jurisdiction, and the court shall have full jurisdiction to do all and every act relating to the assigned estate, the assignees, assignors and creditors, and jurisdiction shall be presumed in support of the orders and decrees therein unless the contrary be shown; and after the filing or recording of an assignment under this act, the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein. 40 Hun, 64.
Trial; fees and costs ; commission of assignee. § 26. The court, in its discretion, may order a trial by jury or before a referee, of any disputed claim or matter arising under the provisions of this act, or the acts hereby amended. It may in its discretion award reasonable counsel fees and costs, determine which party shall pay the same, and make all necessary rules to govern the practice under this act. The assignee or assignees named in any assignment shall receive for his or their services a commission of five per centum on the whole sum which will have come into his or their hands. [Thus amended by L. 1878, ch. 318.] 1 Abb. N. C., 53; id., 173; 8 Hun, 516; 61 N. Y., 344 ; 2 Abb. N. C., 222; 18 Hun, 195; 8
Daly, 119; 9 Abb. N. C., 132 ; 10 Abb. N. C., 284 ; 10 Daly, 11, 39, 52, 74; 30 Hun, 258 ; 34 Hun, 217; 36 Hun, 136; 40 Hun, 523; 44 Hun, 198; 86 N. Y., 398; 89 N. Y., 259; 99
N. Y., 145, 539 ; 13 Daly, 23, 481, 41. Explanatory. S 27. Whenever words in this act importing the plural number are used in describing or referring to any matters, parties or persons, any single matter, party or person shall be deemed to be included, although distributive words may not be used; and when any singular matter, party or person is described or referred to by words importing the singular number or the masculine gender, several matters and persons and females as well as males, and bodies corporate as well as individuals shall be deemed to be included, unless otherwise specially provided or unless there be something in the subject or context repugnant to such construction.
Repeal. S 28. Chapter three hundred and forty-eight of the laws of eighteen hundred and sixty, entitled “An act to secure to creditors a just division of the estates of debtors, who convey to assignees for the benefit of creditors," and the several acts amendatory thereof, are hereby repealed, but this shall not affect any proceedings had; and any proceedings pending under the acts hereby referred to may be continued under this act.
Wages owing employees to be preferred. 8 29. In all distribution of assets, under all assignments made in pursuance of this act, the wages or salaries actually owing to the employees of the assignor or assignors at the time of the execution of the assignment, shall be preferred before any other debt; and should the assets of the assignor or assignors not be sufficient to pay in full all the claims preferred, pursuant to this section, they shall be applied to the payment of the same pro rata to the amount of each such claim. Thus amended by L. 1886, ch. 283, superseding L. 1884, ch. 328.] 39 Hun, 537; 40 Hun, 121; 43 Hun, 380; 46 Hun, 114; 104 N. Y., 606.
Preferences in future assignments limited to one-third of estate. 30. In all general assignments of the estates of debtors for the benefit of creditors hereafter made, any preference created therein (other than for the wages or salaries of employees under chapter three hundred and twenty-eight of the laws of eighteen hundred and eighty-four, and chapter two hundred and eighty-three of the laws of eighteen hundred and eighty-six) shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to the amount of each said preferred claims. [Added by L. 1887, ch. 503.]
105 N. Y., 256.
L. 1885, Chap. 380-An act to confer additional powers upon the su
preme court of the state of New York and the justices thereof, Powers, etc., of county judges under general assignment act conferred on justices of the supreme court, etc. SECTION 1. All powers, rights and duties conferred upon county courts and county judges by chapter four hundred and sixty-six of the laws of eighteen hundred and seventy-seven, entitled "An act in relation to assignments of the estates of debtors for the benefit of creditors," and by acts amendatory thereof and additional or supplemental thereto, are hereby also conferred upon and shall be exercised by the supreme court and the justices of the supreme court of the state of New York, concurrently with county courts and county judges. All applications under said acts made in the supreme court shall be made to the court, or a justice thereof, within the judicial district where the assignment is recorded, and all proceedings and hearings under said acts had in the supreme court upon the return of a citation shall be had at a special term of said court held in the county where the judgment debtor resided at the time of the assignment, or in case of an assignment by copartners, in the county where the principal place of business of such co-partners was at the time of such assignment. 40 Hun, 66.
Of the Custody and Disposition of the Estates of Idiots, Lunatics, Persons of
unsound Mind, and Drunkards.
[The foregoing title was expressly repealed by L. 1880, ch. 245, which was passed May 10, 1880, to take effect September 1, 1880, and contained a clause declaring that the repeal of the portions of the Revised Statutes therein specified effected, also, the repeal of all statutes, remaining unrepealed on August 31, 1880, which expressly amended such portions of the Revised Statutes, by adding to or otherwise altering the text thereof. On May 6, 1880, was passed the supplement to the Code of Civil Procedure, chapter 178 of that year (the nine chapters), to take effect on September 1, 1880, and which contained substitutes for the original provisions of the foregoing title of the Revised Statutes. Finally on May 26, 1880, an act was passed (chap. 423), amending section 22 of that title, which last-named act, as amended in 1885, is accordingly here given.)
L. 1880, Chap. 423-An act to amend chapter five, title two, part two
of the Revised Statutes of the state of New York. Amending the Revised Statutes. SECTION 1. Section twenty-two of chapter five, title two, part two of the Revised Statutes, is hereby amended so as to read as follows: