Dickinson v. Earle

Van Brunt, P. J. (dissenting):

In January, 1897, the defendants, Eugene M. Earle and William Pitt Earle, as copartners, and the said Eugene M. Earle individually, duly executed to the plaintiff, as assignee, an assignment of all their property for the benefit of creditors. The assignee duly accepted the trust and entered upon its duties. The plaintiff as such assignee acquired title to certain hotels in the village of Richfield Springs, which were incumbered by mortgages to a very considerable amount. He also, under such assignment, became the owner of the interest of the defendant Eugene M. Earle in certain real estate in the city of New York of considerable value. This was also incumbered by certain liens or assignments as security for loans made to the defendant. During the summer of 1897, the assignee, under permission of the court, opened hotels for the entertainment of guests, producing a profit over and above expenses. With the view of converting the assigned property into cash the plaintiff applied in January of this year for an order permitting the sale of all the assets of the estate, and an order was subsequently granted under which the sale of the property in this city was advertised for the 24th day of March, 1898, and of the Richfield property for the 29th of March, 1898. A compromise was thereupon effected, by which all the creditors, with' the exception of five, assigned their claims to May S. Earle,-the wife •of Eugene M. Earle. These five and the said May S. Earle have given directions in writing to the plaintiff as assignee to reconvey all the assigned estate to said Eugene M. Earle, subject to such liens as existed thereon at the time of the execution of the general assignment. It is claimed by the defendants that, before the composition was effected, Eugene M. Earle explained to the assignee the arrangement he had in view, and the assignee approved of it, professing a willingness to restore the property as soon as it could be restored with safety. Application being made to the plaintiff he refused to reconvey the property. He, however, abandoned the sale of the property and commenced this action on or about the 5th of April, 1898, for the settlement of his accounts as assignee. The defendants put in an answer whereby they applied for an affirmative judgment removing the plaintiff as assignee, restraining him from selling any part of the assigned estate and directing the return and reconveyance of the said estate subject to such liens as are now *564thereon upon such terms as the court should direct, and that the plaintiff account. The defendants thereupon moved for an injunction restraining the plaintiff from selling or advertising for sale any of the assigned property or from in any manner interfering with- the: property or from hindering, delaying or impeding the said Eugene ■ M. Earle in the management and care of the assigned estate or in his proceedings to open the hotels. Upon the hearing of the injunction the motion was granted and said Eugene ,M. Earle was appointed •receiver of the property in question.

There is nothing in the papers upon which this motion was granted which would justify the court in a removal of the assignee from his position. He was entitled to possession Of the property until the final settlement of his accounts. He had brought an action' for that purpose,: and these amounts might have been easily and quickly settled if the defendants had shown a disposition to aid in attaining that result. The assignee had a right under his deed of assignment to retain possession of the property until, bylegal proceedings Ms accounts were settled and he was paid the amount due to Mm, and then only was he hound to transfer. - . ' ,

It is not so clearly, apparent from the papers submitted upon this motion that the plaintiff has made such improper and unfounded . claims against this property ás would justify his being removed as assignee in this summary manner; because the appointment of a receiver under the circumstances . amounts to a removal' • of the assignee from the position which he was entitled to hold.

It further- appears that at the time of the putting in of the' answer he had abandoned all idea of selling the property, .and there was no necessity for the obtaining of an injunction to restrain an act which was not threatened to be committed.

It seems to mé that the order was improper and should be reversed with ten' dollars costs and disbursements, and the motion denied with ten dollars costs- to- abide the event.'

Order modified as directed in the opinion and as modified affirmed,, .without costs.