
    Eastern National Bank, respondent, v. James E. Hulshizer, appellant.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 1, 1886.)
    
    Supplementary proceedings—Receivers—Assignees.
    Where it appears that the assignee under a general assignment has not claimed the property of a judgment debtor, but it has remained in the possession and under the control of the assignor. And such possession appears tobe with the assent and acquiescence of the assignee, or for some legal reason depriving him of the right of possession and control, the court may order the debtor to deliver it to a receiver appointed in supplementary proceedings subsequently to the making of the assignment.
    Appeal from an order in proceedings supplementary to execution.
    
      Walter C. Gilson, for appellant, James E. Hulshizer.
    
      Thomas C. Cantine, for respondent, the Eastern National Bank.
   Per Curiam.

It has not been made -to appear in any manner that the assignee, under the general assignment, has claimed the property, or any part of it, affected by the order from which the appeal has been taken, but the property has remained in the possession and under the control of the defendant, notwithstanding the assignment. And it must be inferred, from the time which has elapsed, that that has been done with the assent and acquiescence of the assignee, or for some legal reason depriving him of the right to the possession and control of the property affected by the order. The assignee in no manner appears to be a claimant for any part of the property in this proceeding, neither does it appear that any expectation exists on the part of the debtor to deliver or transfer it to the assignee. And under this state of facts it was not improper for the judge to order it to be delivered to the receiver. As against the judgment debtor he was entitled to its possession. If the assignee has any superior claim he will be able to assert and enforce it against the receiver. But as the case is now presented, with the property in the hands of the defendant, and no claim made to it on the part of the receiver and no intention evinced to pass it over to him, the order was a proper one requiring the defendant to transfer and deliver it as that was directed.

The order appealed from should be affirmed, with the usual costs and disbursements.  