
    Edward A. Durant, Jr., Pl’ff, v. Henry R. Pierson, Survivor, and Robert C. Pruyn, Assignee, Def’ts.
    
      (Supreme Court, Special term, Albany County,
    
    
      Filed August 26, 1890.)
    
    1. Assignment fob creditors—Action to set aside—Costs.
    In an action to set aside an assignment for creditors as fraudulent, costs should not be allowed against the defendants personally.
    
      2. Same—Extra allowance.
    In suck an action an extra allowance may properly be made, although there is not enough to pay all creditors.
    3. Same—Receiver.
    The court, at special term, cannot review the finding and decision of the referee that a receiver must be appointed. Such decision and the judgment entered thereon is the law of the case, and the only duty of the court, is the selection of the receiver.
    4. Same—Stay.
    A stay of proceedings will not be granted in such a case, as a stay may be obtained by giving security on appeal.
    5 Same—Restraint or foreign proceedings.
    The court will not, in proceedings by a judgment creditor to set aside-an assignment, grant an order staying proceedings in an action against real estate in another state.
    Motions to correct judgment entered on referee’s • report, for stay, etc.
    
      Stedman, Thompson & Andrews, for pl’ff; M. T. Hun, for def’ts..
   Learned, J.

The plaintiff, in January, 1890, recovered a judgment against Henry R. Pierson, the younger, survivor of the firm of Henry R. Pierson & Son, for a debt due from said firm to him. After issue and return of execution the plaintiff commenced this, action against said survivor and Robert 0. Pruyn, to set aside as fraudulent an assignment made by said survivor to said Pruyn. The action being at issue was duly referred for trial. The refereelias made his report, holding that the assignment was fraudulent and void as to creditors of said firm; that a receiver should be-appointed of all the assets of said firm; that said assignee should deliver to said receiver all the assets in his hands; that the receiver-pay to plaintiff therefrom $6,076.98 and interest, and costs of the action.

Several motions are now made by the parties.

1. The defendant moves to correct the judgment entered on referee’s report, in that it appears to award costs against defendants personally. This motion was granted on the argument.

2. The plaintiff moves for an extra allowance. Under the-, practice prevailing in this district, I think the case is difficult and' extraordinary. The defendant cites, however, cases to show that, though that be so, yet in a case like this an extra allowance should not be granted. Hurd v. Farmers' L. & T. Co., 16 Wk. Dig., 480. That was an action by a receiver, in which he was defeated. Smith v. Green, 8 Civ. Pro., 163. That was an action between partners of an insolvent firm. Graham v. N. Y. Life I. & T. Co., 46 Hun, 261; 11 N. Y. State Rep., 474. The court said the case was not difficult and extraordinary.

I do not think these cases apply to the present. The plaintiff' is endeavoring to collect his debt against an alleged fraudulent, assignment. It may be that there is not enough to pay all creditors. But the diligent creditor is favored. The referee has thought the plaintiff entitled to costs. An allowance of $200 is-reasonable, and is granted.

3. The plaintiff asks for the appointment of a receiver. It is settled by the report and the judgment thereon, until reversed, that a receiver must be appointed. I have at special term no right to reverse that judgment. The referee’s report stands as a decision of the court. Code Civ. Pro., § 1228. I must take the report and the judgment thereon as the law of this case.

It appears to be the practice that the referee who tries an issue is not authorized to select a receiver, although he adjudges that a receiver must be appointed. That makes it necessary for the plaintiff to come to the special term in order to have the receiver selected. Such selection is the only duty for me. I am not to decide whether the appointment of a receiver in this case is, or is not, proper. That has been settled. If I were to refuse to select a receiver I should be refusing to carry out the judgment of the court.

A receiver, Mr. McElroy, as was stated on the argument, has already been appointed in proceedings supplementary. Mo objection appears to him. There should not be two receivers. Mr. McElroy is therefore appointed. His bond should be $10,000. Liberty, however, is given to parties to move to increase or diminish the amount of security.

4. The defendant asks for a stay of proceedings to be granted by the court. I think that matter is provided for by the Code of Civil Procedure, § 1352. This provides that on appeal from final judgment a defendant may stay proceedings by giving security as upon appeal to the court of appeals. Sections 1327 and following state what is necessary in order to stay proceedings. I am inclined to think that this case comes within § 1327; since all which plaintiff really desires is the payment of his debt and costs; and a payment of that sum to him would probably satisfy the judgment. Should the defendant give security on appeal under that section, and should the plaintiff, after such security shall have been given, attempt to enforce the execution of any part of the judgment, the defendant may make a motion (and leave is hereby reserved to him so to do) under § 1351 for an order staying proceedings.

At present I do not grant a stay, because as it seems to me, the defendant may obtain a stay by simply giving security. When such security shall have been given it is not to be expected that the plaintiff will attempt to cause unnecessary trouble to the defendant. If he should do so, it will be easy then to apply for the order of the court as above suggested.

5. The defendant’s affidavit avers that the plaintiff is taking proceedings in the state of Illinois to collect this debt out of real estate there situated, owned by Henry R Pierson, deceased, in his lifetime and devised to Henry R. Pierson, defendant. The defendant asks for an order in this action, staying such proceedings. It does not seem to me proper by a simple order staying proceedings in an action, brought in this state, to set aside an assignment, to interfere with an action against real estate in Hlinois. It has generally been a matter of comity that the courts of one state should not, even by injunction, restrain actions commenced in another. For it has been well said that were this to be done, the court of the other state might retaliate and enjoin the injunction action. This rule, it is true, is not without exception. But whatever might be done by injunction in an action, an order such as is asked for is not proper. The case cited by defendant, Bowers v. Durant, 43 Hun, 348; 6 N. Y. State Rep., 535, was very peculiar. The parties had entered into a very full agreement as to actions; to the effect that courts of New York should have jurisdiction; that the agreement might be pleaded as conferring jurisdiction, etc., etc. It was in virtue of that consent that an injunction (not a stay of proceedings), was granted. That case is no authority for the motion asked for by defendant, and that motion is denied.

No costs to any party on any of these motions.

It is perhaps unnecessary to say that nothing herein is an expression of any opinion whatever on the merits of this case or on the correctness of the decision of the referee.

But I mention this to prevent any misunderstanding.  