Majority
p. 293JAY'S CASE. Supreme Court, First District; Special Term, March, 1858.
Headnote
Eeceiver.—Waiver of Leave to Sue.—Former Judgment.An action against a receiver should not be restrained on the ground that a former judgment has disposed of the matters involved in the action; but the receiver should be left to set that up as ft, defence.
Order to show cause why proceedings should not be stayed.
The petitioner applied for an order restraining the prosecution of an action which had been commenced against him as a ■receiver appointed by the court, and others, and based his application'upon two grounds: Firstly, that the action had been -commenced without leave of court; and, secondly, that the matters involved in the action so commenced, had already been passed upon by the court in other proceedings.
(after disposing of the first objection on the authority of Hubbell v. Dana (9 How. Pr. R., 424), as having been waived in this case).—As to the second objection, the defendant can avail himself of it in the most ample manner, by .an answer to the suit already commenced. Another suit, to set it up affirmatively, cannot be necessary. If true, it furnishes a complete and perfect defence to the action, and should properly •be availed of as such there.
The order to show cause is therefore discharged, and the petition for a stay of proceedings in that suit denied, without costs.