§§ 17-21 General Assignments for the Benefit of Creditors. Art. 2 at his last known place of residence or post-office address, and the postage paid thereon; at least thirty days before the return day thereof. Formerly L. 1877, ch. 466, § 15. § 17. Personal service without the state. When publication has been ordered, personal service without the state made, if within the United States, at least thirty days, or without the United States, at least forty days, before the return day is equivalent to publication and mailing. sons. Formerly L. 1877, ch. 466, § 16. § 18. Service upon minors and incompetent perPersonal service upon minors and persons incompetent shall be made in the manner prescribed by law for the service of citations issued by a surrogate, in cases of final accounting. Formerly L. 1877, ch. 466, § 17. § 19. Service upon partners. Personal service upon one of two or more creditors who claim as co-partners or otherwise as joint-creditors shall be equivalent to personal service on all, and voluntary appearance either in person or by attorney shall be equivalent to personal service. Formerly L. 1877, ch. 466, § 18. § 20. Appearance of claimants not cited. On the return of a citation any person claiming an interest, although not served, may appear and become a party on duly presenting his claim. Formerly L. 1877, ch. 466, § 19. § 21. Power of court on accounting. On a proceeding for an accounting under this article the judge shall have power: 1. To examine the parties and witnesses on oath in relation to the assignment and accounting and all matters connected therewith and to compel their attendance for that purpose and their answers to questions, and the production of books and papers; 2. To require the assignee to render and file an account of his proceedings, and to enforce the same in the manner provided by law for compelling an executor or administrator to comply with a surrogate's order for an account; 3. To take and state such account, or to appoint a referee to take and state it, and such referee shall have the powers enumerated in subdivision one of this section; 4. To settle and adjudicate upon the account and the claims presented, and to decree payment of any creditor's just propor Art. 2 General Assignments for the Benefit of Creditors. $ 22 tional part of the fund, or, in case of a partial accounting, so much thereof as the circumstances of the case render just and proper; 5. To discharge the assignee and his surety at any time, upon performance of the decree, from all further liability upon matters included in the accounting, to creditors appearing and to creditors not having appeared after due citation, or not having presented their claims after due advertisement; 6. On proof of a composition between the assignor and his creditors, to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited, and to authorize the assignee to release the assets to the assignor; provided, however, that if there be any creditors not assenting to the composition, the court shall determine what proportion of the fund shall be paid to or reserved for creditors not assenting, which shall not be less than the sum or share to which they would be entitled if no composition had been made, and may decree distribution accordingly; 7. To adjourn the proceedings from time to time, issue further citations if necessary, and amend the petition and proceedings thereon before decree in furtherance of justice; 8. To punish as for a contempt any disobedience or violation of any order made or process issued in pursuance of this article, and to restrain by arrest and imprisonment any party or witness when it shall satisfactorily appear that such party or witness is about to leave the jurisdiction of the court, and to take bail to secure the attendance of such party or witness, to be prosecuted under the order of the court in case of forfeiture by and for the benefit of the party in whose interest such examination shall be ordered; 9. To exercise such other or further powers in respect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an executor or administrator. Formerly L. 1877, eh. 466, § 20. Subd. 6, am'd by L. 1878, ch. 318, § 5. § 22. Examination of witnesses. The judge may also, at any time, on petition of any party interested, order the examination of witnesses and the production of any books and papers by any party or witness before him or before a refere appointed by him for such purpose, and the evidence so taken, together with books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office, and may be used $$ 23, 24 General Assignments for the Benefit of Creditors. Art. 2 in evidence by any creditor or assignee in any action or proceeding then pending, or which may hereafter be instituted. No witness or party as above provided shall be excused from answering on the ground that his answer may incriminate him, but such answer shall not be used against him in any criminal action or proceeding. Formerly L. 1877, ch. 466, § 21. § 23. Effect of orders; power of judge and duties of clerk. All orders or decrees in proceedings under this article shall have the same force and effect, and may be entered, docketed and enforced and appealed from the same as if made in an original action brought in the court in which the proceeding is pending; provided, however, that a final decree, directing the payment of money, may be enforced by serving a certified copy thereof personally upon the assignee for the benefit of creditors, and if said assignee wilfully neglects to obey said decree, by punishing him for a contempt of court. The imprisonment of said assignee, by virtue of proceedings to punish him for contempt, as prescribed in this section, or a levy upon his property by virtue of an action, shall not bar, suspend or otherwise affect an action against the sureties on his final bond. All proceedings under this article shall be deemed to be had in court. The said court shall always be open for proceedings under this article. The judge, when named in this article, shall, in such proceedings, be deemed to be acting as the court. The clerk of the court shall keep a separate book, in which shall be entered, in each case, the date and place of record of the assignment, and a minute of all proceedings therein, under this article, with such particularity as the court shall direct by general order. He shall record therein at length the orders and decrees of the court, settling, rejecting or adjusting claims, and directing the payment of money, or releasing assets by the assignee, and removing or discharging the assignee and his sureties, and such other orders as the courts shall direct by general order. The said clerk shall securely keep the papers in each case in a file by themselves, and shall be entitled to a fee of one dollar for filing all the papers in each case, and entering the proceedings in the minute-book, and fifty cents to be paid by the assignee, unless otherwise directed, for recording each order or decree required by this article or the general order of the court. Formerly L. 1877, ch. 466, § 22, as am'd by L. 1878, ch. 318, § 6, and L. 1894, ch. 134, § 1. § 24. Sale and compromise of claims. The judge may, upon the application of the assignee and for good and sufficient Art. 2 General Assignments for the Benefit of Creditors. §§ 25-27 cause shown, and upon such terms as he may direct, authorize the assignee to sell, compromise or compound any claim or debt belonging to the estate of the debtor. But such authority shall not prevent any party interested in the trust estate from showing upon the final accounting of such assignee that such debt or claim was fraudulently or negligently sold, compounded or compromised. The sale of any debt or claim heretofore made in good faith by any assignee shall be valid, subject, however, to the approval of the judge, and the assignee shall be charged with and be liable for, as part of the trust fund, any sum which might or ought to have been collected by him. Formerly L. 1877, ch. 466, § 23, as am'd by L. 1885, ch. 464, § 1. § 25. General powers of court. Any proceeding under this article shall be deemed for all purposes, including review by appeal or otherwise, to be a proceeding had in the court as a court of general jurisdiction, and the court shall have full jurisdiction to do all and every act relating to the assigned estate, the assignees, assignors and creditors, and jurisdiction shall be presumed in support of the orders and decrees therein unless the contrary be shown; and after the filing or recording of an assignment under this article, the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein. Formerly L. 1877, ch. 466, § 25. § 26. Trial, costs and commissions. The court, in its discretion, may order a trial by jury or before a referee, of any disputed claim or matter arising under the provisions of this article. It may in its discretion award reasonable counsel fees and costs, determine which party shall pay the same, and make all necessary rules to govern the practice under this article. The assignee or assignees named in any assignment shall receive for his or their services a commission of five per centum on the whole sum which will have come into his or their hands. Formerly L. 1877, ch. 466, § 26, as am'd by L. 1878, ch. 318, § 7. § 27. Wages preferred claims. In all distribution of assets under all assignments made in pursuance of this article, the wages or salaries actually owing to the employees of the assignor or assignors at the time of the execution of the assignment for services rendered within one year prior to the execution of the assignment, shall be preferred before any other debt; and should the assets of the assignor or assignors not be sufficient to pay in full all the claims preferred, pursuant to this section, they §§ 28, 29 Insolvent's Discharge from Debts. Arts. 2, 3 shall be applied to the payment of the same pro rata to the amount of each such claim. Formerly L. 1877, ch. 466, § 29, as am'd by L. 1884, ch. 328, § 1; L. 1886, ch. 283, § 1; L. 1897, ch. 266, § 1, and L. 1897, ch. 624, § 1. § 28. Limitation of preferences. In all general assignments of the estates of debtors for the benefit of creditors any preference created therein, other than for the wages or salaries of employees under the last section, shall not be valid except to the amount of one-third in value of the assigned estate left after deducting such wages or salaries, and the costs and expenses of executing such trust; and should said one-third of the assets of the assignor or assignors be insufficient to pay in full the preferred claims to which, under the provisions of this section, the same are applicable, then said assets shall be applied to the payment of the same pro rata to the amount of each of said preferred claims. Formerly L. 1877, ch. 466, § 30, as added by L. 1887, ch. 503, § 1. § 29. Appraisal of insolvent estate in the hands of assignee. Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part any insolvent estate in the hands of any assignee for the benefit of creditors, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shail value all such property, stocks, bonds or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be required, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time. Formerly L. 1891, ch. 34, § 1, part. ARTICLE 3 Insolvent's Discharge from Debts Section 50. Who may be discharged. 51. To what court application to be made. 52. Contents of petition. 53. Consent of creditors to be annexed. 54. Consent of executor, administrator, receiver or trustee. 55. Consent of corporation, or joint-stock association. 56. Consent of partnership. |