
    The Ætna National Bank et al., Resp’ts, v. Theodore Shotwell, Assignee of Joseph Frazier, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    1. Assignment fob cbeditobs—Assignee mat be obdebed to take up befebee’s bepobt.
    The court at special term has power to make an order directing an assignee for creditors to take up and file the referee’s report upon his accounting.
    2. Same.
    If the assignee makes payment of the claims of creditors without first having ascertained the precise amount of the estate to which creditors would be entitled, such payments are wholly voluntary and at his risk, and lack of funds will not discharge him from the performance of the duty to pay the necessary expenses of his accounting.
    Appeal from an order made at special term directing the assignee to take up and file the referee’s report upon his accounting, and to pay the taxable fees of the referee.
    
      Clarke & Lynde, for resp’ts; J. E. Ludden, for app’lt.
   Bischoff, J.

There is no sufficient reason for doubting the power of the judge at special term to make the order from which this appeal has been taken. It is true that the assignee is not an officer of the court and subject as such to its directions, and the assigned estate is not in custodia legis, but the correlative rights and obligations of the assignee and those interested in the assigned estate are the same as those of other trustees and cestuis que trust, Ludingtons petition, 5 Abb. N. C., 307, and the general equity powers conferred by § 25 of the general assignment act of 1877 upon the courts having cognizance of the matter of the administration of assigned estates are amply sufficient to compel the assignee to perform the duties requisite for the speedy determination of the trust committed to him.

Pursuant to the deed of assignment, the assignee is directed to incur such expense as may be reasonable and necessary in the performance of the trust, and such expenses are directed to be preferred in payment over the claims of creditors of the assignor. To secure the expeditious distribution of the assigned estate among those ultimately shown to be entitled thereto, it is therefore the duty of the assignee to incur and pay the reasonable expenses necessary in that behalf, in the first instance, out of the fund in his possession for that purpose ; and if he fails so to do it is proper that the performance of that duty be required of him, provided it appears that the assignee has or ought to have funds properly applicable to the payment of such expenses.

Here, the assignee admits that he has received upwards of $90,000 in funds of the estate, but claims that by reason of the payment of debts of the assignor the balance remaining in his hands is insufficient to pay the referee’s fees, and upon that ground objects to-the order requiring him to .do so. It is a sufficient answer to that objection to say that it was incumbent upon the assignee first to ascertain the expenses necessarily to be incurred in the performance of his duty, which as a matter of course includes the rendering of an account of his proceedings; and, if he made payment of the claims of creditors without first having ascertained the precise amount of the assigned estate to which the creditors would be entitled, such payments were wholly voluntary and at the risk of the assignee, and the lack of sufficient funds in his hands will not discharge him from the performance of the duty imposed by law upon assignees for the benefit of creditors, the assumption of which was wholly voluntary on his part.

The order should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.  