
    Nathaniel Hooper et al., Resp’ts, v. Charles McCulloch Beecher et al., App’lts.
    
      (Supreme Court, General Term, First Department,.
    
    
      Filed October 16, 1891.)
    
    Assignment for creditors—Duty of assignee.
    A fund was deposited pending appeal involving the validity of an assignment for creditors, which was afterwards directed to he returned to the assignee. Held, that the assignee could not by a mere motion invoke the decision of the court whether he should pay the moneys as directed by the assignment; that he did not hold the money subject to the order of the court, hut subject only to the direction in the assignment, and the court had no authority to control his acts prior to a settlement of his accounts.
    Appeal by the defendants Bartlett and Baillie from an order denying a motion for an order directing the defendant Bartlett to pay the sum of $5,346.40 to Drexel, Morgan & Co., the first preferred creditors named in a general assignment made to him.
    
      Bangs, Stetson, Tracy & MacVeagh, for app’lts; Franklin Bien, for resp’ts.
   Daniels, J.

The money affected by this appeal was deposited by the assignee with the United States Trust Company during the pendency of an appeal involving the validity of a general assignment for the benefit of creditors. The deposit was made under an order of this court subject to its further order. The assignee was successful in his appeal to the court of appeals, and as no further object was to be subserved by retaining the deposit after that, it was directed to be returned to the assignee. He now desires to pay it over to the first preferred creditors, and applied for an order directing that to be done. But if that should under the present circumstances be paid over to such •creditors, it must be under the authority of the direction contained in the assignment.

The assignee does not hold the money subject to the order of this court on motion, but he holds it subject only to the direction contained in the assignment If the case were before this court for the settlement of his accounts and the distribution of the estate under the authority conferred by the statutes relating to general assignments, a very different question would then be presented. But that is not its condition, neither has an action been brought for the recovery of the money by the creditors. But the appeal to the court is by a summary application, to order the assignee to do an act which the court in this proceeding has no authority to control. If the assignment directs the assignee to make this disposition of the money, that is the authority under which he must act He cannot by a mere motion invoke the decision of this court on the point whether he shall, or shall not, conform to the direction contained in the assignment.

The order denying the motion was rightly made, and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.  