(dissenting):
There was no evidence tending to show that the respondent, an unscheduled creditor of the bankrupt, had notice of the bankruptcy *189proceedings on or before -November 24, 1899, on which day the creditors met and appointed a trustee. Participation in the. appointment of a trustee is one of the rights conferred upon creditors. (Bankr. Act of 1898 [30 U. S. Stat. at Large, 557], § 44.) I am of the opinion that it should hot be held that an unscheduled creditor has had “ notice or actual knowledge of the proceedings in bankruptcy” (Bankr. Act of 1898, [30 H. -S. Stat. at Large, 550],, § 17, subd. 3), unless he has had notice or actual knowledge in time to exercise all of the rights of a creditor, as if he had been duly scheduled, for in no other way is he given an equal opportunity with other creditors to participate in the administration of the estate- and to protect his rights; and such, I understand, to be the effect of the decisions of our Court of Appeals and of the Supreme Court of the United States in Columbia Bank v. Birkett (174 N. Y. 112; affd., sub nom. Birkett v. Columbia Bank, 195 U. S. 345)
The court was, therefore, warranted in directing a verdict in favor of the respondent, and the judgment should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide; event.