The New York herald., 1879-03-30
THE COURTS.
Important Decision to Creditors
and Assignees.
SEEKING A LOOPHOLE OF ESCAPE.
A Steamboat Inspectors Consideration fos
Good Character

Chief Justice DAILY has just rendered his decision
on motion argued before him last month to
move Thomas f. Wentworth the assignee. for the
benefit of creditors of william b. BURNETT The ap-
plication made by Cohn. Lazarus & Co. and
other creditors. representing $4,000 out of .
total liability OF $4,000. The ground upon which
the creditors based their action against the assignee
alleged misconduct in the discharge of his duty
and incompetency to impartially and dsinterestedy
execute the trust. Burtnett manufacturer and
dealer in brushes Mr. Wentworth. lawyer. wase
previous to the assignment to him. counsel for Mrs.
Burtnett, who obtained in the name of third party
Judgment, on May 3. 1873, by default against her
husband. for about s11, 900. under which levy
made on the husbands stock which
alleged to be worth over S2s.O0o. It was
charged that Mr.. Wentworth allowed this
stock be sacrificed for less than $4,000 by per-
mitting its hasty sale We days after the
Wentworth. it is alleged. counsel for Mrs. Burt.
nett controlled and directed the execution sale with
the result above mentioned, although at the same
time assignee for creditors. The motion was elab-
orately argued by Albeit Fuller and w. E. Gil.
hooy, OF counsel in behalf of the creditors and
Judge Porter. Dennis McMahon Mr.. Bangs, George
b. Ashley and Mr. Wentworth in person on behalf
of Mr.. Wentworth, the assignee. The papers ara
very voluminous 1t appears by them, in addition
to the facts above stated that BURNETT is under
arrest and held to bail in the amount of S20O0 in
civil suits brought against him by Cohn. Lazarus
Co. 1t was claimed by the assignee that Mrs. Burt
netts judgment was for bona de claim against he's
husband for money loaned him. The main points oe
the opinion Of Judge DAILY given below and will be
found important, deciding interesting
tions in regard to the relations of assignees and
creditors.
establishes strong prima face of absolute
ownership in Mrs. Burtnett, such as would be con.
elusive before ajury. The impression left upon my
mind by the perusa Of the evidence is the contrary.
The given of alleged loans by the wife to the
husband to the large amount of $11 342, for which
Judgment by default against him was entered and
levy made under it upon the entire stock in trade
| OF the husband five days before he made general
| nrOn -
| assignment to satisfy the Judgment, and
the proceeds of which were paid over or accounted
for to the wife by Samuels, the nominal plaintiff in
the judgment. is upon the whole of the evidence
unsatisfactory and suspicious as to leave the impress
sion upon my mind that the case is that of debtor
withholding property from being applied to the pay.
of his creditors and securing the proceeds il
to himself by the cooperation of his wife and OF his
friend Samuels, by having the whole of it sold under
Judgment entered up against him upon an alleged
claim Of Indebtedness from him to his wife.
This Is case, In my Judgment, in which
the creditors are warranted in believing that the
claim of the wife is fictitious and where they should
have every facility in resortng to any remedy legal
equitable. to reach the proceeds of the property
for the satisfaction of their debts. Entertaining.
this view. then, in my opinion, Mr.. Wentworth, who
the legal adviser of the wife respects the
covery Of the Judgment who admits that he hadGa
the control of all the proceedings under it; who
after the levy made by the debtor the trustee in
assignment for the benefit Of creditors. and who
strenuously maintains upon this motion, through
his counsel that the whole transaction was
| fair and honest. is not trustee to
in their efforts reach the proceeds of the property
He states that he became the assignee because the
debtor could get no one else, which may very well
covered by the levy and went afterward to satisfy
the Judgment. Although he was acting as the coun.
sci of the wife in enforcing claim which absorbed
all the debtors available effects, he to have
had question in his mind as to the propriety
OF becoming the assignee for the beneht of cred-
itors in an assignment under. which there
could be comparatively little if anything for
| their benefit. the debtors whole stock in
| trade then secured by levy under a judgments
| entered for the benefit of the wife, The statute
gives the County Judge authority upon the petition
of a creditor to remove the assignee IL misconduce,
incompetency his part is shown, and that Mr..
| Wentworth is within the meaning of this term is
shown from the relations which he has had to Mrs,
Burnett in the recovery of the judgment Ill the levy
and sale of the entire stock in trade Of the debtor
satisfy it, and in the belief which he expresses and
may sincerely entertain that the judgment en-
tered up for just and valid claim is incompetent to-
act for the creditors and just and proper regard for
their interests requires that another assignee should
be substituted in his stead"
Judge Daily has, upon the application of the
creditors made order substituting exJudge LoeW
| assignee in the place of Mr.. Wentworth.