Opinion
March 30, 1953.
Appeal by an assignee for the benefit of creditors from so much of an order made by an Official Referee which denied its application to expunge the claim of an officer of the assignor and deferred payment of dividends on his claim "pending the institution of a plenary suit * * * and the determination therein of the issues based upon the claims" of the assignee against said officer. Order, insofar as appealed from, modified on the law by striking therefrom the second ordering paragraph, and as so modified the order is affirmed, without costs, and matter remitted to Special Term, Part I of the Supreme Court, Kings County, to hear and determine the objections made by the assignee to the claims filed by respondent Geth and assigned by him to respondent Zenith Radio Corporation of N.Y. In view of the provision in the order dated April 15, 1952, denying the application for judgment, from which no appeal was taken, the Official Referee was not required to take proof as to the claimed preferences. Moreover, such claims have, since the entry of the order appealed from, been made the subject of an action by the assignee. The Official Referee, however, according to the stipulation refused to take proof as to the validity of the claims filed by respondent Geth. The assignee for the benefit of creditors was entitled to have a determination as to the validity of the claims. Such determination would have been binding on the assignee of respondent Geth, which had filed its assignment. ( Matter of Creveling Son Corp., 259 App. Div. 351, affd. 283 N.Y. 760; Matter of Morgan, 99 N.Y. 145.) Nolan, P.J., Carswell, Adel, MacCrate and Beldock, JJ., concur.