Opinion
April 28, 1941.
Appeal from an order granting a motion of an assignee for the benefit of creditors to expunge a claim of a creditor in so far as it seeks a preference. Order, in so far as appealed from, reversed on the law and the facts, without costs, and the matter remitted to Special Term to take testimony as to the following matters and to make and enter an order thereon accordingly: 1. Did the board of directors of W.E. Foley Bro., Inc., authorize the execution of the assignment for the benefit of creditors? 2. Was the assignment for the benefit of creditors unconditionally delivered on August 21, 1939? 3. Did the assignee in good faith take possession on August twenty-second? The affidavits on which the order was made do not satisfactorily present the contentions of the parties. Therefore, the proceeding is returned to the Special Term in order that testimony may be taken so that the situation may be disclosed in a clearer light. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.