#### Matter of the Accounting of Charles F. Ginsburg, as Assignee, etc., of Henry C. Donaldson.

(Supreme Court, New York Special Term,

June, 1899.)

1. Assignee for benefit of creditors — Loss on inventory value — Em- ' ployment Of attorneys. . ,

A loss at public sale on the inventory valué of an assigned estate will not be surcharged against its general assignee where the assignor and not the assignee filed, the inventory, and vthere the evidence of the latter and that of the auctioneer, not directly contested by the objecting creditor, tends to show that the public sale of the assets was fair, although some minor requisites were not complied with.

A general assignee is not entitled to employ an attorney to perform ' those duties which the Statute imposes upon the assignee himself but he may employ one for thp preparation of formal papers which must be presented to the court.

Such an assignee will be allowed nothing for the services of attorneys whom he employed to resist an application to compel him to account which was made at a time when he- was legally bound to account; nor will he be allowed a payment to them, in regard to a claim, amounting to more than one-half of the face value thereof, where the estate never realized anything upon the claim.

2. Same — Preferred claims — Salesman on commission as *“*employee ” — Personal taxes of assignor.

A salesman on commission is. an “ employee " and as- such is entitled to a preference in payment, even though his compensation is measured in part by the profits.

Personal taxes due by the assignor to the city of New York, with interest thereon for defaults, are to be preferred in payment to any other claims, except the costs and expenses of the accounting.

3. Same — Beimbursement for rent after assignment refused assignee and claim rejected as against estate.

Landlords who,- with knowledge of the general assignment, have permitted the assignee to use and occupy a part of certain premises formerly leased by the assignor and who have recovered a judgment / for such use against the assignee personally, are entitled to neither *746preference nor payment from the estate but must look to their judgment for payment.

An assignee, who is not shown to have been without funds, should not rent the former premises of his assignor for storage if he can obtain for a less sum, others which are suitable, and if he does so rent, the court will not reimburse him.

Afplicatiou for an Order confirming the report of a referee appointed to take and state the. account of an assignee.

Leon B. Ginsburg (William L. Máthot, of counsel), for assignee.

Guggenheimer, Untermyer &' Marshall (Bernard M. Cone and John P. East, of counsel), for Howard E. Watkins.

Johnston & Johnston (Campbell E. Locke, of counsel), for Keith and another, as executrices,_ etc.

Charles C. Levenson, for preferred creditors.

John Whalen, corporation counsel, for city of Hew York.

Gildersleeve, J.

'This is an application for an order confirming the report of a referee taking and stating the account of ah assignee, as modified to conform to the exceptions filed by the respective parties interested in the proceeding. The brevity of the referee’s report, and the failure to make and state consecutive specific findings of fact and conclusions of law upon many claims and items of the account objected to, render necessary a careful examination of the long record and the voluminous papers which have been filed. Perhaps the most important objection filed to the account was that contained upon pages 47, 48 and 133 of the testimony, wherein it was sought to charge the -assignee with the difference between the value of the estate as actually stated in the inventory filed by the assignor and the amount realized by him upon the auction sale of the assets. Upon this question the referee has briefly passed, by finding that the moneys received by the said assignee from the sale of the'property owned by the assignor were all that it was fairly and reasonably worth, and that the sales were made at public auction and in accordance' with the .rules and practice of this court. Whatever its legal significance, *747it is worthy of note that no exception to this finding of the referee upon the issue raised by this fundamental objection was presented by the creditor who made the objection' before the referee, and : that it is urged upon this motion by one who did not present it upon the accounting proceedings. Although a doubt arises from the record as to whether the manner of the sale of the assets was best calculated to secure the largest number of bidders and to realize the largest proceeds from the assigned estate, because of the allotment of the goods for sale without the immediate supervision of the auctioneer who was intrusted therewith or without consultation with the assignor who was acquainted with the value thereof; and although, perhaps, the specific catalogue of the record of purchasers contemplated by the rules of this court was not presented, yet, such evidence as might properly be held to support the contention of the objecting creditor must be inferentially derived from the examination and from the cross-examination of the auctioneer and assignee. The fact that no direct evidence was adduced in support of that contention to surcharge the assignee with the difference between the inventory value and the realized amount, and the fact that the schedules and inventory were filed by the assignor and not by the assignee, and did not, therefore, have the legal, effect to charge the latter with the actual value of the estate as stated therein, coupled with the findings of the referee upon this issue, warrants this court in believing with tlie referee that the assignee has on this point successfully sustained the burden which his affirmative position imposed upon him in refusing to interfere with the findings of the referee, and renders -them conclusive on this issue. The same conclusion must ■ also be reached with reference to the -payment to the auctioneer for his services in selling the assets of the estate, and also with reference to the payment to the employees of the assignee engaged for the preservation of the estate, which, though not made the subject of controversy on the report, were raised upon the accounting proceedings, and may be involved in the contention concerning the manner of the sale of the assets so far as the liability of the assignee is affected thereby. Objection was raised upon the accounting proceedings to the allowance of the payments made by the assignee to his attorneys in the administration of the estate, with the result that the referee reduced the same by $400. To this finding, strenuous objection is urged upon this motion by the assignee. From a careful examination of the record I can find no *748reason that warrants any inference with the conclusion of the referee upon this point. An attorney stands in the same relation to an assignee as any other agent , or servant employed by him in the administration of his trust, ■ and the allowance of payments to the attorney for services rendered by him and the reasonableness thereof must be determined by the, tests of the necessity, propriety and a fair and reasonable value of those services, and the benefits conferred by them upon the trust estate. “ In the .ordinary performance of such duties as an assignee for the benefit of creditors assumes he at best engages for his own best personal competency to perform them and he cannot involve the estate in the expense of employing counsel to advise him as to duties he has thus assumed, unless it were shown that some unusual complications exist which rendered it reasonable and proper that the ' professional advice should be called in to extricate or alleviate the affairs of the assigned estate from some anticipated complications. Ho such convenient rule exists as enables an assignee, at the 'ex pense of the estate, to retain a'lawyer as one among other employees that he may necessarily employ for the purpose of affording him general advice as to his conduct in his office as trustee. The" special exigencyand reasonable necessity for the incurring of any such expenses in the execution -of 'the trust must in all cases be. shown.” In re Levy’s Accounting, 1 Abb. N. C. 182. Thus, an assignee for the benefit of creditors will not be allowed counsel fees paid for the preparing of schedules or for general advice and consultations. Matter of Wolff, 13 Daly, 481; affirmed, 102 N. Y. 741; Matter of Ludeke, 22 Misc. Rep. 676. In the Matter of Johnson, 10 Daly, 123, it was held that no allowance would be made for charges of an attorney for services which the assignee was bound to render himself; such as preparing the inventory and schedules, advertising,, attending the auction sale, etc.; ■ but only for the preparation of the formal papers that have to be presented to the court in the different- stages of the proceedings, as for preparing the. order, etc., to advertise for claims, the citation to creditors, the papers requisite on the final accounting, and the decree of discharge; ” and these were declared to be “ mere formal papers which do not require either much labor or any great professional skill in .the preparation, involving little less than a due observance of the statute and the rules of the court.” Although it has been held that an attorney who is employed by the assignee as his general adviser in all mat*749ters relating to the assignment, puts himself in such a position" by becoming such that he cannot ask a retainer in the suits which he is called, on to try in the course of his regular duties, and although he cannot accept a specific retainer therefor (Matter of Schaller, 10 Daly, 57), yet, where difficult questions arise, an assignee may lawfully employ counsel to advise him in relation to the administration of the estate and charge the expenses to the trust fund (Jewett v. Woodward, 1 Edw. Ch. 200; In re Levy’s Accounting, 1 Abb. N. C. 177); and there is no doubt that he should be paid therefor, nor of the propriety of an allowance to him of amounts paid to his attorney to defend the trust and to preserve .the assigned estate from attack. Matter of Rauth, 10 Daly, 52-55; Noyes v. Blakeman, 6 N. Y. 579 (p. 584). On the other hand, an assignee will not be allowed for payments to his counsel for litigations in which he involved himself by continuing the business of the assignor nor for resisting applications by preferred creditors for payment before his accounting. Matter of Van Horn, 10 Daly, 131. In this proceeding, the services of the attorneys for which the charges objected to were made, consisted of those in connection with the proceedings directed by the Assignment Act, in opposing the enforcement of claim of ownership of some of the assets of the assigned estate, and, therefore, in hostility to the trust, in resisting an' application for the payment of a preferred claim, in opposing the motion for a compulsory accounting, and in defending an action against the assignee personally for the value of the use and occupation of premises subsequent to the assignment. With reference' to the formal matters,, compliance with which is imposed upon the assignee by the Assignment Act, and for which he .may properly make reasonable payment (Matter of Johnson, above cited), I think that a proper valuation of the same was arrived at by the referee. In the case kof the assertion of the claim of ' ownership to part of the assets of the estate, and of the opposition thereto by the assignee, it seems to me improper that any amount other than that which was found by the referee should be allowed the assignee; for it ■ is evident from the record that the assignee knew of the existence of the claim, the probability of its successful assertion, and the amount involved was not much greater than the value of the services fixed by the attorney, and no' extensive services .were rendered thereon, nor was any benefit conferred by such services upon the assigned estate other than the avoidance of costs, because *750the case was dismissed upon the pleadings in .favor of the. plaintiff, who was awarded the portion of the assets to' which he had madé claim. Much of the record is devoted to the enumeration of the services rendered upon the motion of a creditor for the compulsory" accounting of the assignee to justify the charge which has been made herein. It is difficult-to find .any valid reason why any allowance should be made therefor, for the application, was made by the creditor after the time, in the manner and within the authority of the statute. The duty of accounting was then incumbent upon the assignee, unless some other reason to ,the contrary connected with the administration of the estate existed. That this was not the case here was evident- by the determination of the Special Term, justifying the application and -disapproving of the opposition thereto,, and'directing the accounting; and it, therefore, seems improper to make, as a basis, for the charges which are here-made, services rendered to the assignee in resisting the provisions of a duty which the statute generally imposed upon him, and which the decision of the Special Term specifically, declared he should perform. The other services above referred to were made-necessary by the continued occupation of the premises of the assignor by the assignee subsequent to the assignment, were all rendered in actions brought by the landlords to enforce the liability for the value thereof -against the assignee personally. Upon the record on this issue and under the authority above cited upon-"this particular point, it is difficult to see why any interference ' should.be made with the valuation of the referee. There were, also some charges made for services rendered in collecting claims due the estate, particularly the Kilpatrick claim in which about $90 was involved, and for services in connection with which, a charge of $50 is. made. It is clearly evident that this charge is disproportionate to the fair and reasonable value of the services rendered in connection with the said claim, which view is confirmed by .the fact-that no benefit was ultimately conferred upon the -assigned estate by those services, because nothing was realized upon the claim which was subsequently sold at public auction under order-of the court-. For the above reasons, and in view of the authorities above cited, I think that the valuations of' the-referee for the services rendered in this proceeding must be .Susj tained, and that the- exceptions thereto must be overruled, the motion for an extra allowance denied, and the attorneys for theassignee left to the collection of their taxable costs.

*751The greatest difficulty is presented in connection with the issues raised concerning the claims of Watkins for a preference as an employee of the assignor at the time of the assignment, and of Keith and another, as executrices, etc., for the value for the use and occupation of premises by the assignee subsequent to the assignment. Upon the first point, I think that the facts disclosed by the record concerning the nature and extent of the employment of the claimant, and the recent liberal construction by our courts of the words of the statute awarding preference in these proceedings to employees, justify a confirmation of the findings of the referee thereon. The situation here is very similar to that in the case of Palmer v. Van Santvoord, 17 App. Div. 194; affirmed, 153 N. Y. 612, where, although the particular point was not involved, the statute was under consideration, and it was held, giving the language of the act a fair and reasonable construction, that the respondent, who was employed to sell machines, as well as pack and unpack them, bolt them together, repair them, and do all the necessary work and put them in working order, was deemed an employee, operative or laborer within its provisions, and as such entitled to its protection. See also Brown v. A B C Fence Co., 52 Hun, 151; People v. Beveridge Brewing Co., 91 Hun, 313; Mayer v. Stern, 22 App. Div. 628. The cases of Mayer v. Stern, 22 App. Div. 628; Palmer v. Van Santvoord, 153 N. Y. 612, and Matter of Sawyer, 31 Abb. N. C. 342, may also properly be regarded as authorities for the doctrine that a saleman on commission is an employee under the statute, and, as such, entitled to a preference, even though his compensation was measured in part by a share of the profits. The case of People v. Remington, 45 Hun, 329, affirmed by the Court of Appeals, might seem to cast some doubt upon this conclusion, yet, in view of the stress laid in that case upon the presence of the word “ wages ” in the statute, and of the effect of the exclusion of the words “ operatives ” and “ laborers ” in construing the general word *“*employee,” which is the only word used in the statute awarding preférences in the distribution of assigned estates. In view of the fact that the decision in that case was rendered under the Receivership Law, with its more restricted language, and in view of the later strong *dictum*of the Court of Appeals in the case of Palmer v. Van Santvoord, above cited, it would seein that the statement of the law in that case, though not essential to the decision thereof, should be fol*752lowed here. There is nothing in the record to justify interference with the referee’s allowance of the amount of the preferred claim asserted by- the employee, which differed very much from that asserted upon the accounting proceedings by him, and it, -therefore, must be sustained. . ■

The claim asserted by Keith and another as executrices, etc., was, despite the great doubts concerning the nature thereof in the earlier part of the record, evidently for the Use and occupation by the assignee subsequent to the assignment of the premises previously tenanted by the assignor. There is sharp controversy in the record as to the existence of an agreement between the landlord and the assignee for the use and occupation of the premises and of the nature and extent and the terms thereof. The extent of the occupation, of the premises by the assignee, - which is material because of the basis upon which the claim was finally founded, was also the subject of much controversy upon the accounting. In view of the failure of the referee to make specific, findings of fact and conclusions of law upon the specific question of - the absence or existence of the express agreement for the use and occupation of the premises enhances the difficulty of a determination of an allowance of this claim. It at least appears, however, from the record, and as stated in the report, that the assignee, subsequent to the assignment, took possession of the premises-previously occupied by the assignor, with the knowledge and consent of the landlords, who were also acquainted with the existence of the trust, and that he subsequently occupied a part of the premises to which the landlords had at all times actual access for two months, subsequent to- the assignment. The theory upon which the claim was allowed, and upon which a preference was awarded thereto, was either evidently that it. was'one of the expenses of the administration of the trust, directed to be paid by the deed of assignment,, or that the claimant thereon was subrogated to any rights which the assignee acquired by reason of his expenditures or liabilities incurred for the benefit of the estate; It was, if anything, it must be conceded, an expense incurred in the administration of the assigned estate by the assignee subsequent to the assignment, for which the assignee made no payment, and for which he asked no allowance in his -account, and which he. strenuously opposes on this motion. The conclusion of the referee seems inconsistent with the statement' of the law made in Noyes v. Blakeman, 6 N. Y. 577, and in Austin v. Munro, 47 N. Y. 360, *753which has been consistently followed by the subsequent decisions of the highest court of this State. “ Whatever lien at law or in equity, a trustee may have upon trust property in his possession, for expenses incurred in its care and management, it is perfectly settled that persons who render services for the trust estate upon the employment of the trustee, have no such lien for services.” Noyes v. Blakeman, 6 N. Y. 577.

It is an assignee’s duty to protect, preserve and convert the assigned property, and without neglecting' his trust duties may engage help, incur liability and make proper, reasonable and necessary expenditures for that purpose, for which he will be allowed on his accounting. *“*It is undoubtedly true- as a general rule, that where a trustee employs agents in the execution of his trust, they are to look to him individually, and have no lien upon the trust fund for their compensation. If he is in funds he is bound to protect the estate, in which case he has no lien, and, consequently cannot assign any, having none to assign.” Noyes v. Blakeman, 6 N. Y. 580.

To this there is an exception, “ being without funds, and a necessity arising for expenditures in order to protect the estate from spoliation, he may either make them himself, and be allowed for them in the passing of his accounts, or may engage others to do it upon the credit of The fund, reserving- to himself the samé management and direction as in any other case, and thus avoid' the objection that he delegated his trust.” Noyes v. Blakeman, supra, p. 580. See Bishop on Insolvent Debtors (2d edi), p. 872, who adds to the above language the words,. “ in which case he shall bind the trust property by his contract.” The present case does not seem to fall within this exception, because it clearly appears from the record that the premises were necessarily used really for storage purposes only, and it would have been possible for, and it was within the contemplation of, the assignee to secure premises for the storage and preservation of the property of the assigned estate at a much lower rental than is here sought to be charged, within a few doors of the premises occupied by him, and there is no direct evidence that he did not have funds, either in the shape of cash on hand, the proceeds of accounts '.collected by him," or sales made by him, to bind the estate for the expenditures necessary for its presérvation.

*754The rule laid down in Austin v. Munro, 47 N. Y. 360, would demand that, in this ease, the claimants should, as they actually did, look to the assignee personally for compensation for the use and occupation by him of their premises. That rule has been frequently applied to the case of executors and administrators; thus, in Willis v. Sharp, 113 N. Y. 586 (p. 591), it was- declared that “ It is the settled doctrine of the courts of common law that .a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually, and does not bind the estate which, he represents, notwithstanding it may have been contracted for the benefit of the estate; ” and the cases where such debts and expenditures have been allowed against the estate have been those where the testator binds the general assets for all the debts of the business to be carried on after his death. See Columbus Watch Co. v. Hodenpyl, 135 N. Y. 434.

The case of Thomson v. Smith, 64 N. H. 412, states that, “An administrator cannot bind the estate by an executory contract, nor create a liability not founded npon the contract or obligation of his intestate. But relief may, in proper case, be given in equity, by applying funds of the estate to the discharge of an obligation entered into, in good faith, by the ad: ministrator on behalf of the estate, no other remedy being open to the plaintiff.” The claimants herein, however, have succesfully asserted their claim for the value of the use and occupation of the premises by the assignee after the assignment, against him personally, and have recovered a judgment therefor; if any equitable considerations exist for the allowance thereof against the trust fund of the estate herein, they must fairly be regarded as those arising from the condition pointed out in Noyes v. Blakeman, *■Hupra,*and above stated, and which, it is shown above, do. not exist.. It seems to me, therefore, for the above reasons, and in view of the authorities already and below cited, that claimants must be referred, as they have themselves chosen, to their remedy against the assignee for the use and occupation,- by his own responsibility, of their premises subsequent to the assignment-; and that-the claim presented therefor should not be allowed-as a general or preferred claim against the estate assigned herein. See Ferrin v. Myrick, 41 N. Y. 315 (p. 322); New v. Nicoll, 73 N. Y. 127. (p. 131); Barry v. Lambert, 98 N. Y. 309; Caulkins v. Bolton, 98, N. Y. 516; Schmittler v. Simon, 101 N. Y. 558; Blood v. Kane, *755130 N. Y. 520; U. S. Trust Co. v. Stanston, 139 N. Y. 531 (p. 533). ' .

Exception is also made to the allowance by the referee of the claim of the city of Eew York to personal taxes due to it from the assignor, with interest, for his defaults in payment within the statutory time. It seems to be the settled‘law of this State—- and has been, accordingly, the uniform practice of this court — to award a preference to such claims over all others in the distribution of insolvent estates, and the exception to the allowance of said claim and of a preference therefor must be overruled; and the-said claim is entitled to a preference in payment before all others presented herein, after the deduction from the balance in the hands of the assignee of the costs and expenses of this accounting. See Matter of Columbian Ins. Co., 3 Abb. Ct. App. Dec. 239; Central Trust Co. v. N. Y. C. & N. R. R. Co., 110 N. Y. 250 (p. 258); In re Welsbach Incand. Light Co., N. Y. Law Journal, January 24, 1894; People v. Man. Trust Co., N. Y. Law Journal, June 17, 1890; In re Blight, N. Y. Law Journal, September 9, 1896.

For the foregoing reasons the report of the referee, with the exception of the allowance of the claim of Keith et al., as executrices, aud of a preference therefpr, should be, and is hereby, confirmed.

Ordered accordingly.