Hildreth v. Burkhalter

INGRAHAM, J. This action is brought to remove the assignee appointed in the assignment for the benefit of creditors on the ground that he occupies a position antagonistic to that of the creditors whom he is bound to represent, being president of the Irving National Bank, to which was assigned a large amount of book accounts belonging to the assignors just before the assignment, and which transfer to the bank is claimed to be fraudulent as against the creditors. I have concluded, in a motion argued herewith in an action to set aside the assignment and transfer to the bank on the ground that the same was made with intent to hinder, delay, and defraud creditors, to appoint a receiver of the assigned estate; and the considerations that have influenced me in granting that motion would justify the appointment of a receiver in this action. Bank v. Fancher, 21 N. Y. Supp. 545. The motion will, therefore, be granted, and the receiver appointed in that action will be appointed in this action. I do not think I would be justified, however, on this motion, in determining that the transfers to the bank should be set aside. There is no question as to the solvency of the bank, and the receiver must take such action as he shall be advised to recover from the bank the accounts so transferred. Order to be settled on notice.