Majority
p. 311PEOPLE v. NORTH RIVER SUGAR REFINING CO. N. Y. Supreme Court, First Department, General Term; 1889.
Headnote
Stay pending appeal; forfeiture of corporate franchise.] In an action to annul the charter of a corporation, wherein a judgment was obtained which annulled the charter and provided for the appointment of a receiver of the corporate property and the distribution thereof, a stay cf all proceedings pending an appeal from the judgment will be denied where the court that rendered the judg
p. 312
ment made an order upon the application for the stay, directing the receiver to make no sale or distribution of the property of the corporation.
Appeal from an order.
The action was brought for a forfeiture of the franchise of the Horth River Sugar Refining Company, and a judgment therein for the plaintiff was rendered (see case reported in 22 Abb. N. C. 164 ).
The defendant moved for an order staying all proceedings under the judgment pending an appeal which had been taken from the judgment.
That motion came on to be heard before Hon. George "0. Barrett and was denied, the following opinion being ■rendered :
“ The only proceeding upon the judgment which can be -stayed by a statutory undertaking is the issuing of an execution for the collection of the costs. In other respects, the judgment of dissolution is self executing. This has been expressly held with regard to judgments of ouster (Welch v. Cook, 7 Sow. Pr. 282; People v. Conover, 6 Abb. Pr. 220 ■—in the latter case with the concurrence of all the justices in this district). An order staying proceedings upon the judgment would not restore the corporation to life nor would it absolve its officers from obedience to our injunction (Sixth Ave. R. R. Co. v. Gilbert El. R. R. Co., 71S. Y. 430). Such restoration can only be effected by a reversal of judgment. There is no provision of the Code for such a stay in a case of this character; and the sections to which reference is made by counsel (sections 1328, 1329, 1331) are in terms inapplicable. This is not an appeal from a judgment directing the delivery of personal property or the delivery of possession of real property. The receiver here takes the •defendant’s property, not for the plaintiff’s benefit, but as a ¡necessary incident to the judgment of dissolution. The appeal, therefore, continues the situation precisely as it is.
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'The corporation is still dissolved, and its officers are still under the prohibition contained in the judgment. There ■they must remain until reversal. Meanwhile the property must be secured and protected. That duty devolves upon the receiver and can be performed by him alone. The court will undoubtedly instruct him to make no sale or distribution •of the property pending the appeal. To that extent the defendants may take an order upon the present application. In all other respects, however, such application should be -denied.”
In accordance with this decision an order was entered, which provided as follows s
££It is ordered, that the receiver be and he hereby is instructed to make no sale or distribution of the property that may come into his hands pending the appeal or until the further order of the court, and in all other respects the motion made by the defendant is hereby denied.”
From this order an appeal was taken to the general term.
John E. Parsons, for the appellant.
Roger A. Pryor, for the respondent.
The object of the application was to obtain :an order staying all proceedings under the judgment in this ■action until the hearing and decision of an appeal taken from it by the defendant. The judgment was obtained in -an action brought by the attorney-general in the name of the People to annul the charter of the defendant as a corporation and terminate its corporate existence. In the •action a judgment to that effect was rendered in favor of the plaintiff, providing for the appointment of a receiver and the distribution of the property of the defendant. By the •order, which was made on the hearing of the motion, the •court directed the receiver to make no sale or distribution of the property that might come into his hands during the
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appeal, or until the further order of the court. And that seems to be as far as the court, consistently .with its own judgment could proceed, for the judgment itself provided for the appointment of a receiver who should be authorized to take possession of the property of the defendant. And it appeared upon the hearing that he had qualified as such-receiver and entered into the possession of the refinery-building previously owned by the defendant. He had proceeded no further than he was necessarily required to go in-compliance with the direction contained in the judgment.. And by no action which he may be permitted to take will any of the rights or interests of the defendant be jeopardized or injuriously affected during the pendency of the-appeal, farther than that will necessarily result from the-judgment itself. As favorable an order has been made as the circumstances and the authority remaining in the court over the litigation appeared .to justify. And the order-should, therefore, be affirmed with $10 costs and the disbursements.
Van Brunt, P. J., and Brady, J., concurred in the.result.
Cases cited
- People v. North River Sugar Refining Co. 22 Abb. N. C. 164 p. 312
- People & Devlin v. Conover 6 Abb. Pr. 220 p. 312