#### In the Matter of the Assignment of Joseph Stockbridge *et al.*to Isaac Bristow for the Benefit of Creditors.

[Special Term.]

(Decided November, 1879.)

A final decree upon an accounting by an assignee for the benefit of creditors, requiring the payment of money by the assignee, cannot be enforced by attachment, and fine and imprisonment as for a contempt.

Under section 1915 of the Code of Civil Procedure, which applies to actions upon bonds of assignees for benefit of creditors, the court may authorize any number of actions on such a bond, and leave to sue will be granted to any creditor who shows himself entitled thereto.

Motion for an attachment against an assignee under a general assignment for the benefit of creditors, for his failure to pay over to the creditors moneys directed, by the final decree upon his accounting, to be paid by him to them.

The decree upon the final accounting of the assignee charged him with a specified sum, the total amount of the proceeds of the assigned estate and interest, and, after allowing him certain sums for expenses, &c., directed the remainder thereof, the sum of §7,131.08, to be distributed among the creditors named *34in the decree, and payment thereof to those creditors or to their attorneys was ordered to be made forthwith.

Upon service on the assignee of a copy of the decree and a demand in writing of the sums due certain of the creditors, made by their attorney, the assignee answered, “ that he had ho money of the assigned estate referred to in said decree, and could not pay the money required to be paid by said decree, or comply with its termswhereupon the creditors made this motion for an attachment against him.

The affidavit of the assignee, in opposition to the motion, alleged that the funds of the estate were collected and retained by the firm of George W. Kidd & Co., of which he was a member, and that George W. Kidd, also a member of said firm, was one of the sureties on his hond as assignee, and was amply responsible ; that the firm had been dissolved, and that he had commenced an action against his former copartners to recover the trust funds, which was still pending. Parts of these allegations were controverted by affidavits on behalf of the creditors.

*Samuel G. Adams,*for the creditors.

*Frank K. Pendleton,*for the assignee.,

J. F. Daly, J.

A final decree in accounting cannot be enforced by attachment. Provision for enforcing such a decree is expressly made by section 22 of the General Assignment Act (L. 1878, c. 318, § 6, amending L. 1877, c. 466, § 22). It is there enacted that all decrees in proceedings under this act shall have the same force and effect, and may he entered, docketed, and enforced and appealed from the same as if made in an original action brought in the county court. Judgments and decrees of the county court are enforced by execution where the judgment is for a sum of money, or “directs the payment of a sum of money ” (Code, § 1240). The judgment being enforceable by execution, the court has no power to punish the party for not paying, by fine or imprisonment (Code, § 14, subd. 3). Such was the state of the law prior to the Code *(Hosack*v. *Rogers,*11 Paige, 603).

*35„ The General Assignment Act above cited provides further (§ 20) that the county judge may exercise such powers in respect to the proceedings and the accounting as a surrogate may by law exercise in reference to an accounting by an executor or administrator. It also provides (§ 25) that the court may exercise the powers of a court of equity in reference to the trust and any matter involved therein. Giving these provisions the effect of controlling the mode of enforcing final decrees in accounting, they do not confer the power of punishing, by fine and imprisonment, disobedience to a final decree for the payment of money, since neither the surrogate nor the court of chancery could commit as for a contempt in such a case *(Matter of*Watson, 69 N. Y. 536). Such decrees could be enforced only by execution against the property and against the body.

It is plain, however, that these provisions of sections 20 and 25 give this court full power to punish, by attachment for contempt, disobedience to interlocutory orders for the deposit, payment, or transfer of funds and property in the hands of the assignee, or under his control, and for disobedience to final decrees other than for the payment of money (Code, § 14, subd. 3 ; *Matter of Watson; Hosack*v. *Rogers, supra).*

Motion denied, but, as the question is new in these proceedings, without costs.

Afterwards leave to prosecute the bond of the assignee was granted to Oscar Hoyt, one of the moving creditors; and on motion by other creditors to vacate the order granting him leave to sue, the following opinion was rendered, January 18th, 1881.

Van Hoesen, J.

The method of bringing action on the bond of an assignee is now regulated by section 1915 of Code of Civil Procedure, which is. a substitute for Article second, Chapter 6, Title 6, Part 3, Revised Statutes. That article of the Revised Statutes was frequently before the courts for consideration, and a serious question existed as to whether it was possible to carry out its provisions after the abrogation by the *36old code of the remedy known as the *scire facias.*It was the opinion of the Superior Court that a new action should be brought for every new breach of the condition of the bond, and that under the practice prescribed by the Code of Procedure judgment should not be taken for the penalty of the bond, in the first action that might be brought. The cases I refer to are, *Baggot*v. *Boulger*(2 Duer, 170); *O'Connor*v. *Such*(9 Bosw. 318); *Ireland*v. *Litchfield*(8 Bosw. 634). It is true that some of the actions, to which I have referred, were actions brought upon the bonds of administrators, after the surrogate had assigned them; and it has been held that a distinction exists between suing on a bond to the people which had been assigned, and suing on a bond to the people which had not been set over to a particular individual. Where the bond has been assigned pursuant to some statute the assignee may bring suit upon it in his own name though it may run to the people, but where it has not been assigned it has been held that the action should be in the name of the people. Perhaps after the intimation of the court in *Dayton*v. Johnson, (69 N. Y. 428), even under the law which was in force before the last nine chapters of the Code of Civil Procedure took effect, an action on a bond made to the people might have been brought by a party in interest in his own name. As to that I express no opinion. Section 1915 was evidently designed to do away with those provisions of the Revised Statutes which regulated the method of proceeding to enforce bonds for the performance of covenants. That section is not so clear as it ought to be, but it does provide that there may be two or more successive acúous upon a bond, and that the bond shall be construed as if it contained a covenant to perform the act specified in the condition thereof. It also provides that damages may be recovered for successive breaches, and then limits the aggregate amount of damages to the penalty mentioned in the bond, except in a certain case not now to be considered. My own conclusion is that the effect of this is to make it proper for the court to authorize any number of actions upon an assignee’s bond. There is now no statutory provision which contemplates a judgment for the amount of *37the penalty, in the first action on the bond, and a series of proceedings in the nature of a writ of *scire facias*for the benefit of persons other than the relator by whom the first suit is brought.

The system of enforcing sheriffs bonds under the Revised Statutes seems to mo to afiord a very good guide to those who now seek to enforce an assignee’s bond. It appears to me to cover the case exactly, though I do not say that there is any statute which makes it applicable. I shall grant to any creditor who shows himself entitled thereto, permission to sue upon the bond of the assignee.

I have very little doubt that there is collusion between Kidd and Hoyt’s attorney, and I suspect that Hoyt is only a tool in Kidd’s hands, but the evidence before me is not sufficient to authorize me to set aside the order which allows Iloyt to prosecute the bond. 1 can only say, I suspect; I cannot say, I adjudge. If any *Iona fide*creditor who really intends to prosecute the bond wishes to make a case which will w-arrant the setting aside of the order which empowers Iloyt to sue, I will appoint a referee to take proof of the facts, if the applicant will stipulate to pay the fees of the referee. My own belief is that such a proceeding is unnecessary, for Hoyt is in nobody’s way.

I shall not remove Bristow on the application of Hoyt; if any creditor acting for himself, and not for Kidd, should make the application, a different question would be presented.

The proposed orders should each contain a provision for the distribution by the Court of Common Pleas of the moneys that may be recovered. Sections 17, 18, vol. 3, p. 781, 5th Ed. Revised Statutes may be consulted, as to the form of the provision.

Motion denied.