
    MATTER OF CASTLE.
    
      N. Y. Common Pleas; Chambers,
    January, 1877.
    Accounting.—Assignee for Benefit of Creditors.
    The surety of an assignee for benefit of creditors is not entitled to require an accounting under the statute.
    Whether he may petition for removal, query ?
    
    If one who is both creditor and surety presents a single petition for accounting in several estates, it will be dismissed.
    Motion to require an assignee for the benefit of creditors to account.
    The petition of Joel E. Hyams, presented to one of the judges of this court as county judge, averred that Samuel A. Castle, Henry I. Magrave and Rufus E. Hitchcock, made a general assignment to Leopold Bamberger in August, 1875, and the assignee took possession thereunder of the property of S. A. Castle & Co., of the value of several thousand dollars ; that said Bamberger was also assignee of the estate of the firm of Obright & Weil, and of the estate of Jacob Wolbach; that the petitioner had become surety for said assignee in these three assignments, to the amount, in the aggregate, of $60,000; that he was unable to state, with certainty, what amount said assignee had received from the several estates, but he knew that he had received upwards of $30,000, and that the petitioner believed himself liable for an honest account being rendered by the assignee ; that the assignee had, to the petitioner’s knowledge, used the sum of about $18,000 out of the moneys received by him as assignee, to pay his private debts ; that he had used and was using the balance for his private speculation and profit, and had purchased several promissory notes, several of which he specified, with the per cent, discount; that the petitioner had purchased of Rosenfield Bros. & Co. their claim of §219.76 against S. A. Castle & Co., and was the owner thereof at the time of making this petition; that by reason of the acts of the said assignee the petitioner was in danger of paying the entire amount for which he gave security, and of having his said claim against S. A. Castle & Co. prejudiced; that the assignee was a man of very limited means, and, as the petitioner believed, unable to pay his individual liabilities; and that he had not filed any accounts as required by law.
    Wherefore he asked that the assignee be required to deposit the money received by him from each of the said assigned estates in a trust company, to the credit of each, and to account for all moneys received by him as assignee of either of said estates.
    In answer to the petition the assignee alleged that Obright & Weil had been adjudicated bankrupts; that the U. S. marshal had taken from Bamberger a large portion of their property which came into his hands ; that the assignee in bankruptcy had commenced an action to recover all .the bankrupt’s property in Bamberger’s hands, and that he was restrained by injunction from disposing of any of their property; that Jacob Wolbach had settled with all his creditors, and they had released Bamberger as assignee; that in regard to the assignment of S. A. Castle & Co. suits were pending by and against the assignee; that the petitioner (a former partner of Bamberger, who had commenced a suit for an accounting against him), was a mere prowling assignee of a small claim, taken under circumstances that justified the inference that he was not acting in good faith, and was not the real party in interest; and that, the time for creditors to file proof of claims having expired, Bamberger had commenced a suit for an accounting, and for his discharge.
    •Richard 8. UTeiocombe, for the motion.
    
      
      M. L. Townsend, opposed, urged:
    I. That the petition was multifarious, and in that respect irregular as embracing the subject matter of three assignments.
    II. ' That the petitioner as surety had no standing in court, or right to make the motion. That L. 1875, p. 51, c. 56, amended L. 1870, p. 296, c. 92, and conferred upon creditors only the right to call upon the assignee for an accounting.
    III. That if the petitioner was a creditor he should, apply to the court for a citation or summons.
    TV. That under the statute the court had no power,, by a proceeding of this character, to compel an assigneeto deposit moneys, which he has received as such, in a. trust company or elsewhere.
    V. Assuming that a surety has a right to call upon his principal for an accounting, under the Code, he can only do it by commencing an action by summons and complaint.
   J. F. Daly, J.

In respect of the assigned estate of S. A. Castle & Co., the petitioner, being a creditor, will be entitled, on a proper petition, to citation to the assignee, requiring him to account, or to show cause to the contrary (Act of 1875, chap. 56, § 2, amending § 4, chap. 348, act of I860).

The amendment cited gives no right to the sureties, of the assignee to call him to account. The provisions to that effect in the amendment of 1872 (Laws of 1872, chap. 838, § 1) are repealed.

The amendment of 1873 (Laws of 1812, chap. 363, § 1) amending section 5 of the act of 1860, indicates a means-of protecting the estate from an unfaithful assignee by his removal, and such an application may probably be-made by parties interested, although I do not wish to intimate that the sureties of such assignee may invoke-the power of the court for that purpose; but it may be that he is an interested party in the administration of' the trust (See, as to removal of trustee, 1 R. S. 730, § 70).

The petition of Mr. Hyams not being confined to the matter of the assigned estate of-Castle & Co., of which he is a creditor, but including other assignments, in which he asks for special relief as surety of the assignee, must be dismissed, without costs.  