Levy's Accounting.

sale, and be held as morally commendable, such efforts and experiments are, however, at the risk of the assignee and his sureties, so far as they prove unprofitable, and are not assented to by the creditors, and they are legally unjustifiable as against the non-concurring creditors.

The position and office of an assignee for the benefit of creditors, has become more and more with occurring legislation that of a quasi public officer (Nichols v. McEwen, 19 N. Y. 27). Instead of being, as at common law, the mere agent and trustee of the immediate parties to the assignment, his duties "are very much such as a sheriff may perform under an execution" (Nichols v. McEwen, supra), and he is now subjected to such jurisdiction in the county court as the surrogate exercises over an executor or administrator in compelling an account; in settling the same, and adjudging payment of any debt out of the trust fund; and to his summary removal and substitution of another trustee by reason of his insolvency, or for other cause, &c., by a court of equity (1 R. S. 730, § 70) on petition or complaint.

The control of his action, therefore, becomes more stringent, and his accountability more rigid, by reason of the necessity that the judge should regard the interests of unrepresented and unknown creditors or parties. The action of the county judge is controlled by such statutory and common law rules as prevail in proceedings for accountings had and conducted before a surrogate for the settlement of the estates of deceased persons.

The claim of the assignee for an allowance of a credit for $487, paid attorney and counsel, is disallowed to any extent beyond $25 for drawing and supervising the execution of the assignment. This is only allowed because provided for in the assignment as a preferred debt.

The exceptions to the report of the referee, taken by the prosecuting creditor, are allowed in respect to

Note to Levy's Accounting.

the items of the assignee's account: "Counsel fee for assignment, and two dispossessing proceedings, $337." "Counsel fee defending suit ads. Lewis, and appeal to general term, $150;" together amounting to $487, except as to the said sum of $25,-otherwise the report in this proceeding is confirmed. Costs are allowed to the opposing creditor.*

*The following precedent of exceptions to a referee's report on accounting of an assignee will be useful in this connexion. Exceptions, sufficient of which are given below to serve as a precedent, were overruled at special term; but on appeal were sustained and the report confirming the account set aside (Anonymous v. Gelpecke, 5 Hun, 245; Bernard Roelker, for the exceptants).

Exceptions taken by

defendants, in this action, to the report of W. C., Esq., the referee to whom the action was referred by an order of this court, dated purposes therein set forth :

for the

I. For that the referee allowed and reported as correct the item in the assignee's account of assets collected, bearing number, by which it appears that he collected only $64,870.95, or twenty-five cents in the dollar of the par value of the certain assets that have come to his hands, and which the assignees ought to have realized at par, which assets were [designating them], instead of collecting the full amount of the face of the said with interest; whereas the referee ought to have found and reported, that the trustee, the plaintiff, has not realized the full value of said assets. The said defendants, as reason for this their exception and objection, among others, state :

That plaintiff acted in this compromise without the knowledge or consent of his co-trustee, and also without the knowledge or consent of or notice to the cestuis que trust, the creditors of the estate; that no legal measures were taken to enforce the several claims against the city; that said defendants, if they had known of this contemplated sacrifice of these claims against said city, would themselves have been willing to give double the sum for which they were parted with. That the pretended order of the court, dated under which the plaintiff claims to have acted, was and is null and void as to the cestuis que trust, the defendants, as creditors, inasmuch, among other reasons, as the proceedings were had without any notice to the creditors, or making them parties to the proceeding, and without the consent or knowledge of the co-trustee.

That the city of Dubuque was not insolvent or without any available

Levy v. Curtis.

LEVY v. CURTIS.

N. Y. Supreme Court; First Department, Special Term, February, 1876.

PRINCIPAL AND AGENT.-ACTION FOR REFUSAL TO PAY DRAFT. An agent authorized to draw upon his employer for moneys becoming due to him,—e. g., expenses,—may maintain an action against the employer for maliciously refusing to honor drafts drawn accordingly.*

means or prospect of paying its debts; but on the contrary was able to and did pay other debts and judgments against them in the year 1870; that at present, and for some time past, the same ten per cent. bonds sell and sold for &c., and that fifty cents in the dollar for the principal, and fifty per cent. for the interest thereon, would be readily obtained.

II. For that the referee allowed and found as correct the items in the plaintiff's accounts on the debit side, under dates of March 19, 1869, $30,000; April 7, $5,000; April 10, $5,000; July 31, $24,870.95, for the claims against the city of Dubuque, whereas the referee ought to have found and reported that the said sums realized from said assets are not the full value of the claims, and that the plaintiff received the several sums therefor much below the price which he ought to have obtained and disposed the same for, and that he, the plaintiff, might have realized out of said assets.

III. For that the referee allowed and found as correct in the plaintiff's account the charge or item on the credit side under date November 25, 1867, $1,765.54, paid to for legal services, whereas the referee ought to have found and reported that said amount is too high for the services for which the amount was paid; and further, that the court or judge who made the order for this extra allowance in said order of had no power to order

such allowance.

IV. For that the referee found and reported that the first, second, and third objections filed with and submitted to the referee by and on behalf of the said defendants, who have appeared and answered in this action by B. R., Esq., as their attorney, were not established by the evidence and in conformity with the directions in said interlocutory order, whereas the referee ought to have found and reported that each of said objections were well founded in fact and in law. V. For that, &c., &c.

* For recent cases on breach of promise to accept,—see Central

Levy v. Curtis.

Demurrer to complaint.

It is

Herman Levy sued James F. Curtis and Francis Schleifer; and the complaint avers that the plaintiff, who was a traveling salesman in the defendants' employment, had been instructed to, and was authorized by the defendants, when he was traveling for them, and in their employment, to draw drafts on them for his necessary traveling expenses; and that pursuant to such instructions and authority, the plaintiff drew, at Chicago, a draft on them, and at Pittsburgh another, which he procured to be cashed at such places; each of the drafts was drawn for one hundred dollars. alleged that the amount for which the two drafts were drawn, were necessary to the plaintiff, for the purpose of paying his traveling expenses as the defendants' salesman. It is also alleged that the defendants maliciously, designedly, and with intent to injure the reputation and standing of the plaintiff with his customers, refused to pay the drafts, and permitted them to be protested for non-payment, and refused to pay the same. That at the time of the refusal, the defendants were indebted to the plaintiff in a sum exceeding the amount of the drafts.

Henry P. Wells, in support of demurrer.

Gardiner & Goodhart, opposed.

VAN VORST, J.-[After stating the pleadings].-The demurrer admits that the allegations in the complaint are true, and that they disclose a breach by the defendants, of their engagement with the plaintiff, in their refusal to pay the drafts, and in their allowing them to

Savings Bank v. Richards, 109 Mass. 413; Merchant's Exch. N. Bank v. Cardozo, 35 Super. Ct. (J. & S.) 162; Shaver v. Western Union Tel. Co., 57 N. Y. 459.

Lévy o. Curtis.

be protested for non-payment. When they authorized the plaintiff to draw for his expenses, they undertook to honor and pay the drafts. When there is a valid contract, and it has been broken, the plaintiff must be entitled to recover such damages as necessarily ensue from the non-performance or breach. These are general damages, and they need not be expressly detailed in the complaint, and are recoverable under the common conclusion.

It may be that the plaintiff is not entitled to recover the special damages, claimed by him in the complaint, nor is this decision to be regarded as an authority in their favor.*

But such damages, and those only as are the consequence of the defendant's failure to honor and pay the drafts in question, and of which such failure is a proximate cause, may be recovered in the action (Devendorf v. West, 43 Barb. 227).

Where there is a breach of an express contract, nominal damages may be recovered, though no damage may really have been sustained (Marzetti v. Williams, 1 B. & Ad. 425; 20 E. C. L. R.; Fitch v. Fitch, 35 Superior Ct. (3 Jones & Spencer) 302; Chitty's Pleadings, vol. 1, p. 338; Broom's Commentaries on Common Law, p. 624, marg.).

There should be judgment for the plaintiff on the demurrer, with liberty to the defendant to answer in twenty days, on payment of costs.

No appeal was taken.

* The allegation was,-that he was injured in credit generally, and particularly so with the persons named who cashed the drafts; and was injured in his reputation as traveling salesman, and thereby prevented from obtaining employment for three months. See on this point, Ilsley v. Jones, 13 Gray, 260.