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convert to the purposes of the trust any of the assigned property, enter into a bond to the people of the state of New York, in an amount to be ordered and directed by the judge, with sufficient sureties to be approved of by such judge, and conditioned for the faithful discharge of the duties of such assignee, and for the due accounting for all moneys received by him, which bond shall be filed in the clerk's office of the county where such assignment is recorded, but in case the debtor shall fail to present such inventory within the twenty days required, then the assignee, before the ten days thereafter shall have elapsed, may apply to said judge by verified petition for leave to file a provisional bond, until such time as he may be able to present the schedule or inventory as hereinbefore provided.

§ 7. Further security. The judge may, upon his own motion or upon the application of any party in interest, and on such notice as he may direct to be given to the assignor, assignee and surety, require further security to be given whenever, in his judgment, the security afforded by the bond on file is not adequate.

§ 8. Discharge or removal of assignee; correction Amesed of inventory or schedule; supplemental inventories or schedules. The judge shall

, in the case provided in section w.360 four, and may also, at any time, on the petition of one or more creditors, showing misconduct or incompetency of the assignee, or on petition of the assignee himself, showing sufficient reason therefor, and after due notice of not less than five days to the assignor, assignee, surety and such other person as the judge may prescribe, remove or discharge the assignee, and appoint one or more in his place, and order an accounting of the assignee so removed or discharged, and may enjoin such assignee from interfering with the assignor's estate, and make provision by order for the safe custody of the same, and enforce obedience to such injunction and orders by attachment; and, upon the discharge of the assignee upon his own application, such assignee's bond shall be canceled and discharged. The new assignee shall give a bond, to be approved as required by section six. The judge shall have power, by order, to require or allow any inventory or schedule filed to be corrected or amended. The judge may also require and compel, from time to time, supplemental inventories or schedules to be made and filed within as he shall prescribe, and to enforce obedience to such orders by attachment.

$ 9. Failure to file bond. A failure to file any bond required by, or under this article, within the specified time will not


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deprive the judge of his power over the assignee or the trust estate.

§ 10. Action on bond; application of recovery. Any action brought upon an assignee's bond may be prosecuted by a party in interest by leave of the court; and all moneys realized thereon shall be applied by direction of the judge in satisfaction of the debts of the assignor in the same manner as the same ought to have been applied by such assignee.

V § 11. Proceedings in case of death of assignee. In case an assignee shall die during the pendency of any proceeding under this article, or at any time subsequent to the filing of any bond required herein, his personal representative or successor in office, or both, may be brought in and substituted in such proceeding on such notice, of not less than eight days, as the judge may direct to be given; and any decree made thereafter shall bind the parties thus substituted as well as the property of such deceased assignee, provided, however, that if such assignee dies subsequent to the filing of his bond and before any proceedings may have been had thereunder, then the surety on such bond may apply to the judge for an accounting, who may, on such terms as to him seem just and proper, appoint another assignee and release such surety.

$ 12. Citation for judicial settlement of account.

A citation may be issued to all parties, interested in the estate 64,360. assigned, as creditors or otherwise, requiring them to appear in

court on some day to be specified in the citation, and to show cause why a settlement of the account of proceedings of the assignee should not be had, and if no cause be shown, to attend the settlement of such account. The court must issue all citations mentioned in this article which must be returnable in court.

issue a citation on the petition of an assignee, at any time after the assignment or on petition of a creditor, or an assignee's surety, or an assignor, at any time after the lapse of one year from the date of such assignment, or where an assignee has been removed and ordered to account as hereinbefore provided.

8 13. Citation on petition of creditor. A citation issued on the petition of a creditor may be addressed to and served on the assignee alone, but on or after the return of such citation the assignee may have a general citation issued to all parties interested.

§ 14. Service of citation. A citation to all persons interested must be served on all parties other than the petitioner, who

Amend 1914

12 to 20 Repeated

It may

And. 1914

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are interested in the fund, including assignors, assignees and their sureties; except that if the time limited by due advertisement for presentation of claims has expired before the issue of the citation, creditors who have not duly presented their claims need not be served. In case the creditors of such assignor, who have proved their claims, exceed twenty-five in number, then the judge, upon proof by affidavit that such creditors exceed such number, may by order direct such citation to be served on each creditor who has proved his claim, by depositing a copy of the same, at least thirty days prior to the return day thereof, in the post-office at the place where the assignee or assignees, or either of them, reside, duly inclosed and directed to each of such creditors, at his last known post-office address, with the postage prepaid; and by publishing such citation once a week for at least four weeks prior to such return day in one or more newspapers, to be designated by such judge as most likely to give notice to such creditors.

$ 15. Time of service of citation. A citation personally Inc. served within the county where the assignment is recorded or an

1416 adjoining county must be so served at least eight days before Ch. 360 the return thereof; if in any other county, at least fifteen days before the return thereof.

$ 16. Service by publication. The judge may direct Arue service to be made by publication when he is satisfied by affidavit

1914 or verified petition either that the person to be so served is

ch. 360 unknown, or that his residence cannot, after diligent inquiry, be ascertained, or that he cannot, after due diligence, be found within the state. The order for such service must direct service of the citation upon such person to be made by publication thereof in two newspapers to be designated by the judge as most likely to give notice to the person to be served, for such length of time as he may deem reasonable, not less than once a week for six weeks, and that a copy of the citation be forthwith deposited in the post-office duly inclosed and directed to each person so served, at his last known place of residence or post-office address, and the postage paid thereon; at least thirty days before the return day thereof.

8 17. Personal service without the state. When pub- And. lication has been ordered, personal service without the state made, 1914 if within the United States, at least thirty days, or without the United States, at least forty days, before the return day is, 360 lent to publication and mailing.

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18. Service upon minors and incompetent persons. Personal service upon minors and persons incompetent shall be made in the manner prescribed by law for the service of citations issued by a surrogate, in cases of final accounting.

19. Service upon partners. Personal service upon one of two or more creditors who claim as co-partners or otherwise as joint-creditors shall be equivalent to personal service on all, and voluntary appearance either in person or by attorney shall be equivalent to personal service.

8 20. Appearance of claimants not cited. On the return of a citation any person claiming an interest, although not served, may appear and become a party on duly presenting his claim. $ 21. Power of court on accounting

accounting on a proceeding for an accounting under this article the judge shall have power:

11. To examine the parties and witnesses on oath in relation to the assignment and accounting and all matters connected there with and to compel their attendance for that purpose and their answers to questions, and the production of books and papers; 2. To require the assignee to render and file an account of his proceedings, and to enforce the same in the manner provided by law for compelling an executor or administrator to comply with a surrogate's order for an account;

3. To take and state such account, or to appoint a referee to take and state it, and such referee shall have the powers enumerated in subdivision one of this section;

4. To settle and adjudicate upon the account and the claims presented, and to decree payment of any creditor's just proportional part of the fund, cr, in case of a partial accounting, so much thereof as the circumstances of the case render just and proper; 7 5. To discharge the assignee and his surety at any time, upon performance of the decree, from all further liability upon matters included in the accounting, to creditors appearing and to creditors not having appeared after due citation, or not having presented their claims after due advertisement; ✓ 6. On proof of a composition between the assignor and his creditors, to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited, and to authorize the assignee to release the assets to the assignor; provided, however, that if there be any creditors not assenting to the composition, the court shall determine what proportion of the fund shall be paid to or reserved for creditors

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not assenting, which shall not be less than the sum or share to which they would be entitled if no composition had been made,

and may decree distribution accordingly; v 7. To adjourn the proceedings from time to time, issue further citations if necessary, and amend the petition and proceedings thereon before decree in furtherance of justice; 8. To punish as for a contempt any disobedience or violationof any order made or process issued in pursuance of this article, and to restrain by arrest and imprisonment any party or witness when it shall satisfactorily appear that such party or witness is about to leave the jurisdiction of the court, and to take bail to de secure the attendance of such party or witness, to be prosecuted under the order of the court in case of forfeiture by and for the benefit of the party in whose interest such examination shall be ordered; 9. To exercise such other or further powers in respect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an executor or administrator.

§ 22. Examination of witnesses. The judge may also. Romelew at any time, on petition of any parts interested, order the ex-rouel, amination of witnesses and the production of any, books and 1914 papers by any party or witness before him or before a referee

ch 360 appointed by him for such purpose, and the evidence so taken, together with books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office, and may be used in evidence by any creditor or assignee in any action or proceeding then pending, or which may hereafter be instituted. No witness or party as above provided shall be excused from answering on the ground that his answer may incriminate him, but such answer shall not be used against him in any criminal action or proceeding.

§ 23. Effect of orders; power of judge and duties of clerk.

All orders or decrees in proceedings under this article shall have the same force and effect, and may be entered, docketed and enforced and appealed from the same as if made in an original action brought in the court in which the proceeding is pending; provided, however, that a final decree, directing the payment of money, may be enforced by serving a certified copy thereof personally upon the assignee for the benefit of creditors, and if said assignee wilfully neglects to obey said decree, by punishing him for a contempt of court. The imprisonment of said assignee, by virtue of proceedings to punish him for contempt, as prescribed in this section, or a levy upon his property by virtue of an action, shall not bar, suspend or


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