I concur in the result of the foregoing opinion, that the motion for reargument should be denied. The decision made was arrived *883at with deliberation, and after a close examination of the record and question involved. It may be true that in the decision rendered assumptions were indulged in which were not justified by the record, as seems to be done in the foregoing opinion, but nothing in the record was overlooked by the learned justices who concurred in the prevailing opinion. It was deliberately decided that upon an appeal from an order confirming a referee’s report, appointed by a judgment, where a referee had acted strictly pursuant to the directions of the judgment, without anyappeal having been taken therefrom, this court had the right to reverse the referee’s report and the judgment in a material portion thereof, no portion of the record upon which such judgment was founded being before this court.
O’Bbien, J.The rule of law, however logical, which prevents an assignee from being credited with amounts paid out in good faith for counsel fees and other expenses in his effort to uphold an assignment which has been attacked by creditors, and subsequently set aside on the ground of fraud, has always seemed to me to be a harsh one. Where, as in this case, it would appear that no person other than the plaintiff was interested in the result of the action, and that an amount sufficient to fully compensate him was in the hands of the receiver, I was therefore of opinion that the result reached by Mr. Justice Babbett would serve the ends of exact justice. Our attention is now called to the case of Mandeville v. Avery, 124 N. Y. 376, 26 N. E. Rep. 951, for the first time; and, as stated by Mr. Justice Babbett, it was not brought to the attention of the court upon the argument of the appeal. That case is seemingly authority for the view that a receiver in actions prosecuted to set aside transfers of property made by a debtor to defraud creditors represents the creditors, and possesses the same rights as the creditors, under whose judgments he was appointed, would themselves have had. This case, together with the facts now appearing,,that the suit was brought, not only on behalf of the plaintiff, but that there are other judgment creditors who take the same position, hostile to the assignment, and whose claims may not be secured by the amount now in the hands of the receivér, it seems to me presents a case for a reargument, to the end that all the facts may be again presented, and the bearing of Mandeville v. Avery thereon determined. I am ■therefore of opinion that the motion for a reargument should be granted.
Van Betjnt, P. J.Upon reading the above memorandum lam at a loss to understand how facts appearing outside of the appeal book can be considered upon a motion for reargument. The new argument would be upon the facts disclosed by record only if a reargument is ordered upon extrinsic facts. The reargument would be ordered upon one record and the reargument heard upon another.