(concurring in result). I concur in the result reached in the opinion of Mr. Justice Van Voorhis, but solely on the ground that the assignee’s power with respect to proceedings to set aside a bulk sale under section 44 of the Personal Property Law and sections 15 and 19 of the Debtor and Creditor Law is a fiduciary one subject to approval by the court and not assignable or delegable by him under section 19 of the Debtor and Creditor Law. I disagree with the view that an assignee for the benefit of creditors, who succeeded in recovering under section 44 of the Personal Property Law, could distribute the recovery only among the creditors at the time of the transfer. Such a recovery would be available for distribution as part of the general fund without preference. (See Debtor and Creditor Law, § 23.) The rule could be no different than that which obtains with respect to fraudulent conveyances set aside at the suit of the assignee under old subdivision 6 or new subdivision 6-a of section 15 of the Debtor and Creditor Law. To such conveyances, section 23 obviously applies and yet such conveyances were in the absence of a general assignment vulnerable only at the suit of existing creditors. See generally article 10 of the Debtor and Creditor Law.
Peck, P. J., and Callahan, J., concur with Van Voorhis, J.; Breitel, J., concurs in result, in opinion.
*575Order reversed, with $20 costs and disbursements to appellants and the motion to dismiss the complaint insofar as the action is brought by American Mercantile Company, Inc., is granted. Settle order on notice.