
    Henry G. Hahlo and Others, Composing the Firm of Hahlo Brothers, Respondents, v. John B. Cole, Appellant. Ernest P. Burritt, as Trustee of the Estate of Henry G. Hahlo and Others, Individually and Composing the Firm of Hahlo Brothers, Respondent.
    First Department,
    April 20, 1906.
    Bankruptcy — consent that trustee he substituíe’d as party should be obtained from Federal court.
    It is the better practice for a trustee in bankruptcy to obtain the consent of the Federal court before seeking to be substituted as a party in a prior action brought by or against the bankrupt.
    
      Qucnre, as to whether , such substitution is authorized without consent of the Federal court.
    Appeal by the defendant, John Bi Cole, from an order-of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of January, 1906, substituting the trustee in bankruptcy as a party plaintiff in place and stead of the individuals who have been adjudged bankrupts during the pendency of the action.
    
      
      David T. Davis, for the appellant.
    
      Henry M. Wise, for the plaintiffs, respondents.
    
      Frank H. Curry, for the trustee, respondent.
   Laughlin, J.:

The former plaintiffs in' this action were copartners, and they instituted the action upon a firm account' for stock sold and delivered to the defendant. Subsequent to the commencement of the action the plaintiffs were duly adjndgéd bankrupts by decree of the United States District Court for the southern district of .ISTew York, and the respondent Burritt was duly appointed trustee in bankruptcy, The motion for substitution was opposed upon the ground that the trustee failed to show that he had been authorized by the. Federal court to intervene in the action. The objection Was overruled, evidently upon the ground that the interest of the former plaintiffs had been transferred to the trustee, and that the court was, therefore, authorized by section 756 of the Code of Civil Procedure to "direct that the trustee be substituted in .their place.

Undoubtedly the claim in litigation passed to the trustee in bankruptcy, and he had a duty to perform with respect to the collection thereof. (30 U. S. Stat. at Large, 565, § 70, subd. a ; Id. 552, § 21, subds. e, g; Id. 549, § 11, subd. c; Id. 552, § 23, subd. b, as amd. by 32 id. 798, § 8.) The trustee; however, in the performance of his duties, is subject to the' order and direction of the'Federal court. (Bankruptcy Law [30 U. S. Stat. at Large, 557], § 47, subd. a, ¶ 2.) Subdivision c of section 11 of the Bankruptcy. Law (supra) provides as follows: “A tl-ustee may, with -the approval of the Court, be permitted to prosecute axs trustee any suit commenced by the bankrupt prior to the 'adjudication with like force and effect as though it had been commenced by him,”

The question arises as to whether this statutory provision has reference to the court in which the quit is pending or to the Federal court. It was evidently the view of the Supreme Judicial Court of Massachusetts that it refers to the Federal court, and requires the consent of that court before an action in a State court by or against the bankrupt can be' prosecuted or defended by the trustee", for in Callahan v. Israel (186 Mass. 383), where a demurrer had been interposed to a complaint in an action • brought by a trustee in bankruptcy upon the theory that it was • essential, even in an original action by him, to allege, as a condition precedent to his right to maintain the same,"'the consent of the Federal court,- the court in overruling .this objection said: “ The title' to the 'estate is vested in the trustee. * (U.^ S. St. "1898, c. 541, 70a, 21e, g.) There is no reason to hold that he has not the right o-f an owner to bring suit to collect - his property, save as it is clearly expressly, limited by the act. The only such limitations are found in § 11, and relate only to suits brought by or against the bankrupt before the proceedings in bankruptcy, and pending after th’e appointment - of the trustee.” , " "

A like view was taken by the Supreme Court of Georgia. (Traders Ins. Co. v. Mann, 118 Ga. 381, 383, 384;: 11 Am. Bank. Rep. 269, 272.) The District Court in this district has construed this statute as requiring the consent of the" Federal court, and has adopted the practice of granting such consent in the form of an order authorizing the trustee to apply to the State court for substitution. (Matter of Price, 92 Fed. Rep. 987.)

It is manifest that it may not, be for the best interests of the estate "of a bankrupt to have the trustee intervene to prosecute and' defend all-actions, pending in favor of or against the bankrupt, and this was doubtless the theory upon which the statutory provision was enacted. (See Collier Bankruptcy [5th ed.], 141 ; Matter of Price, supra.) It is at least doubtful whether the trustee has-authority to prosecute or defend an action pending at the time of his appointment without the consent of the Federal court. An action by or against the bankrupt in the State court does not abate upon the adjudication in bankruptcy or appointment of a trustee, and in the ábsence of an application by the trustee for substitution it may be prosecuted or defended by the bankrupt.

There is no force in the suggestion that the trustee is not disqualified from obtaining the order for substitution because section 11 of the Bankruptcy Law (30 U. S. Stat; at Large, 549) only-requires authority of the Federal court to permit him to prosecute or defend the action,, and that the prosecution or defense of the action cannot be commenced until after he has been substituted as a party. Since the Federal court can control the prosecution of the action by -the trustee, there is no propriety in allowing the substitution until it is determined that it is to be effective. (See Baer v. McCullough, 176 N. Y. 97, 103.) Therefore, without deciding that the substitution is unauthorized unless the consent of the Federal court thereto is first obtained and affirmatively shown, we are of opinion that it is improper, and that the better practice is to require the trustee to show on all such applications that he has obtained the consent of the Federal court.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements,-and the motion denied, with ten dollars costs, but with leave.to renew on proof of authority from the bankruptcy court.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred.

Order reversed, with ten dollars costs, and motion denied, with ■ ten dollars costs, with leave to renew as stated in opinion. Order filed. ,  