Harding v. Fiske — 25 Abb. N. Cas. 348

Majority

p. 348

HARDING v. FISKE.

N. Y. Supreme Court, First District, Chambers ;

October, 1890.

Headnote

.Injunction to restrain enforcing judgments against insolvent corpora tion.] In an action by a stockholder of a manufacturing corporation, alleged to be insolvent, for a receiver of the company and to have certain judgments by default against it in favor of an officer thereof adjudged void, in which it appeared that other creditors were pressing the company,—Held, that an injunction pendente lite against the enforcement of such judgments should be granted, as such officer of the corporation should not be allowed to secure a preference for his own claim against such other creditors.

’The rule in Varnum v. Hart, 119 N. T. 101, followed.

Motion for an injunction pendente lite.

p. 349

Joseph M. Harding brought this action against Joseph W. Fiske, the J. M. Harding Manufacturing Co. and John M. Fiske, for a receiver of said company, and to procure an adjudication that certain judgments against said company were null and void, and to have its assets marshalled and to compel the defendants to account concerning the pretended indebtedness of the company, and as to their management of its affairs.

The plaintiff’s moving affidavit alleged his discovery, of' a cure for catarrh and his invention of an instrument patented by him, and the formation of the company, to the capital of which he had contributed his medical formula and his patent, and the affidavit stated also, in detail, the various operations of the company, by which it had become involved in debt, against the plaintiff’s remonstrance, and that the defendant, Joseph W. Fiske, had commenced several actions against the company, upon pretended promissory notes, alleged to have been given to him by the company, through.the defendant, John M. Fiske, its treasurer, in which judgments were obtained by default and executions issued, and levies made upon the property of the company, and that the sheriff was then in possession and intended to sell the same. The relief asked was the appointment of a receiver of the company, with suitable power for the management and control of its business, and the temporary injunction restrained the defendants Fiske and the sheriff, their servants, agents, and attorneys, from selling the company’s property, the collection of the. alleged judgments, or any of them, and from further interfering in any manner with the affairs or business of the company, until the hearing and decision of the motion.

Frederick R. Lee, for plaintiff, and the motion.

Leavitt & Keith, for the defendant, Fiske, opposed,

Albert H. Atterbury, for the company.

Under the case of Varnum v. Hart ( 119 N. Y 101 ), I think that the preliminary injunction should be continued until the cause can be tried. Although that case holds that the provisions of the Revised Statutes* prohibiting an insolvent corporation or any of its officers from, assigning or disposing of its property for the payment of a debt, and prohibiting any assignment or transfer in contemplation of insolvency, do not impose upon the officers of an insolvent corporation the duty to take measures to procure a disposition of its property without preference among all its creditors; it also holds that its purpose of preventing an unjust discrimination was sought to be accomplished, not by securing affirmative action, but by restraining the action of the corporation or its officers.

It appears • by the papers of the defendant, Fiske, that there are other creditors who are pressing the corporation, and, as he is an officer of the corporation, he should not be allowed to secure a preference for his own claim against those creditors.

$10 costs to the plaintiff to abide the event. Settle order on notice.

Cases cited

Varnum v. Hart 119 N. Y 101 N.Y. 1890-01-14 p. 349