Pool v. Coleman. discord of ill-played music, disturb the inmates of an apartment house, no relief by injunction can be obtained unless the proof be clear that the noise is unreasonable, and made without due regard to the rights and the comfort of other occupants. The situation of the dwellers in apartments, whilst it has its advantages, must be, in some respects, less agreeable than that of those who occupy a whole house. They cannot expect the same quiet and repose. The man who lives in a hotel must not be surprised if roused from sleep by the heavy foot of some guest passing by his door at an unseasonable hour. Nor ought the plaintiff to have been surprised by the use of any ordinary means which the defendant might employ to lull his sick child to sleep. No man has a right to such immunity from noise that his neighbor cannot stir in his own room. There is nothing in the affidavits to lead me to the conclusion that the defendant, in having this carriage instead of a cradle, made a use of his apartments which, in view of the plaintiff's right to quiet and repose, was unreasonable. It is probable that a cradle swinging upon pivots set in stationary standards would have answered the purpose as well as the carriage, and as it would make no noise, good neighborship might suggest the use of it; as matter of law, however, if the defendant himself were taken sick, and obliged to walk the floor all night through pain, the plaintiff would have no right to insist that he should put on india-rubbers. As has been said, each case must stand by itself; and where people indulge their inclination to be gregarious they must not expect the quiet that belongs to solitude. The injunction must be dissolved, with $10 costs to defendant Higginson. Motion denied and temporary injunction dissolved, with $10 costs to defendant Higginson. Matter of Currier. IN THE MATTER OF THE ASSIGNMENT OF JOHN A. CURRIER, FOR THE BENEFIT OF CREDITORS. [SPECIAL TERM.] (Decided October 3d, 1878.) Under the General Assignment Act of 1877, all the creditors whose names appear in the schedules of the assignor with the proper statement of their claims, and whose claims are not contested, are entitled to their dividends from the assigned estate, even though their claims are not presented to the assignee after advertisement. The former rule in equity cutting off from a dividend such creditors as did not appear after advertisement and prove their claims before a referee appointed in a suit for an accounting and settlement of the estate, as laid down in Kerr v. Blodgett (48 N. Y. 62): held, not applicable under the general assignment act. In proceedings under the general assignment acts (L. 1877, chap. 466, § 26 ; L. 1878, chap. 318, § 26), neither costs nor counsel fees, payable out of the assigned estate, can be allowed to parties other than the assignee. The stipulation of counsel as to the compensation to be allowed a referee appointed in such proceedings is not binding upon the court, as it does not come within § 313 of the Code of Procedure, which refers to civil actions only; and a greater allowance than $5 for each sitting and $3 for each adjournment in an ordinary reference to pass an assignee's account, held to be unreasonable and disallowed, notwithstanding a stipulation allowing a larger sum. MOTION to confirm the report of John A. Bryan, a referee appointed to take and state the account of an assignee, under a general assignment for the benefit of creditors, and for the settlement of allowances to counsel. The facts are stated in the opinions of the court. D. Noble Rowan, for assignee. John A. Mapes & N. B. Cook, for creditors. JOSEPH F. DALY, J.-The assignee having advertised for creditors to present to him their claims with the vouchers therefor duly verified, pursuant to section 4 of the act, chapter 466, laws of 1877, and a limited number only of the Matter of Currier. creditors named in the assignor's schedules having appeared and proved their claims, these creditors and the assignee now contend that all the other schedule creditors are cut off from any share of the estate. The authority relied on is Kerr v. Blodgett (48 N. Y. 62). It was there held that in an action in equity (commenced prior to the passage of the General Assignment Act of 1860) by the ereditor of an assignor, on his own behalf, and on behalf of all other creditors of the assignors, against the assignee for an accounting, it was according to the practice of the courts of equity to make an interlocutory order referring the account of the assignee, and directing advertisement to be made for creditors to present their claims to the referee, and decreeing distribution of the estate among those only who proved their claims; and that the interlocutory order was for the benefit of all the creditors, and bound them all whether they had actual notice or not; and that after the estate was distributed, a creditor who had failed to appear and prove his claims, after such advertisement, had no remedy. In an accounting under the general assignment acts (L. 1877, c. 468; L. 1878, c. 318), the court has no power to make an order requiring creditors to appear and prove their claims or be excluded from any share of the assigned estate. The advertisement for claims authorized by section 4 of the act of 1877 is made by the assignee, and nothing in the act can be construed into a provision cutting off from a distributive share a creditor who does not present his claim. The advertisement ordered in equity suits requires the creditors to appear before a referee, who exercises judicial functions in examining, allowing and rejecting claims presented. The assignee has no such judicial power. The creditors of the assignor, whose names appear on the schedules as creditors, with the proper statement of their claims, need not, unless such claims are contested, present their demands to the assignee in order to obtain a dividend. The filing of the schedules in court, under the provisions of the act (sec. 3), is a presentation to the court of the claims therein admitted, and is prima facie evidence of the in Matter of Currier. debtedness of the assignor to the persons named as creditors. The fact is before the court and cannot be ignored. Before the passage of the general assignment acts there was no provision of law requiring the making up, verifying and filing schedules in cases of assignments for the benefit of creditors. There was no method by which the court could ascertain who were the creditors of the assignor except by advertisement, which was always directed in the interlocutory judgment. Such persons only as appeared before the referee and proved their claims were deemed to have claims; and the court was ignorant that others existed. In cases under the general assignment acts the proof of the claim is before the court, the assignee and the referee, duly presented and verified by the assignor. One object of advertising for claims under section 4 of the act is to notify creditors whom the assignor may have omitted (either intentionally or unintentionally) from his schedules to come and present their claims to the assignee. It is also intended to relieve the assignee from the necessity of giving notice of the subsequent proceedings in accounting to creditors who have not presented their claims (section 12, sub. 13); but nothing in the act warrants the construction that it intended to cut off from participation in the fund creditors whose claims have been presented and authenticated by the assignor in his schedules, and who have not come forward (their claims not being attacked) to make further proof. Under section 4, after advertisement, a creditor is not bound to do more than present his claim to the assignee. This has been already done for him by the assignor. He has no proofs to produce, because the assignee has no judicial power to examine and determine upon proofs. Disputes as to claims are to be tried before a referee or jury on special order of the court (section 26), and parties who unsuccessfully dispute a claim must pay the costs of the litigation. Unless an order be made under the 26th section for the trial of disputed claims, and after due notice to the creditor whose claim is attacked, no creditor is bound to come to the assignee or referee with his proofs. Report referred back. Matter of Currier. Upon the question of allowances arising in the same matter the following opinion was delivered : JOSEPH F. DALY, J.-There is no authority for allowing costs and counsel fees in proceedings under the general assignment acts (L. 1877, c. 466, § 26; L. 1878, c. 318, § 26) to parties other than the assignee, payable out of the assigned estate. Whatever may have been the power of the court or judge prior to the amendments of the act above cited, the latter leave no doubt on the subject. They contain (sec. 26) an express enactment as to counsel fees and costs. The enactment is connected with the authority vested in the court, to order a trial before a referee or by a jury of any disputed claim or matter arising under the provisions of the act, and further provides that the court may, in its discretion, award reasonable counsel fees and costs and determine which party shall pay the same. The statute plainly intends the power to award costs and counsel fees shall be confined to cases of disputed claims and matters, and that the party to the dispute who has unsuccessfully prosecuted or defended shall pay his adversary reasonable costs and counsel fees. This provision adequately protects all parties. means. The legislature evidently appreciated the danger of encouraging litigation in assignment cases, and has prevented any waste of the funds in the assignee's hands by such The creditors of each estate are numerous, and reasonable pretexts are not wanting for each to employ counsel, a moderate allowance to whom would, in nearly every case, absorb all the fund. If a creditor wishes his interest protected, and employs counsel for the purpose, he must expect to pay for the service out of his own pocket and not to charge the shares of all the other creditors with the expense. It may be said that the exertions of a single creditor will, by cutting off improper claims of other pretended creditors, or by sifting the assignee's accounts, materially swell the fund, which should then pay for the common benefit. But the statute gives the court power to inflict costs and counsel fees on defeated claimants and |