Moore v. Empie — 17 A.D. 218

Majority

p. 218

Eleanor Moore, Appellant, v. Pearl Empie, Respondent; Borden D. Smith, as Receiver of the Property of Pearl Empie, Appellant.

Headnote

Receiver—an appean'anee waives'the right to written notice of an application therefor,.

An appearance before a judge, on an application in supplementary proceedings for the appointment of a receiver of a judgment debtor, by his attorney, pursuant to oral notice, is a waiver of any right to written notice of such application.

• Appeal by the plaintiff, Eleanor Moore, and by Borden D. Smith, as receiver of the property of Pearl Empie, from an order of the county judge of Eulton county, entered in the office of the clerk of the county of Fulton on the 23d ,day of February, 189 7,. vacating an. 'order entered in said clerk’s office on the 30th day of March, 1896,. appointing Borden D. Smith receiver of the property of Pearl Empie, a judgment debtor.

. The plaintiff in this action, Eleanor Moore, heretofore recovered a judgment against Pearl Empie, and upon the return of the execution unsatisfied an order in supplementary proceedings was issued, and such .proceedings were thereupon had that Borden D. Smith Was appointed, receiver of all the debts and property of such judgment debtor. The order appointing Smith receiver was made March 30, 1896. In May, 1896, as such-receiver, Smith commenced an.action against the defendant,, Pearl Empie, and Fannie Empie, his daughter, for the purpose of setting aside as fraudulent a certain conveyance of real estate made by the defendant, Pearl Empie, to his daughter, Fannie Empie.

On the 15th of February, 189Y, the defendant and his attorney made certain affidavits upon which they procured an'-order to show

p. 219

cause, dated the fifteenth of February, why such order appointing Smith receiver should not be vacated and set aside, which order to show cause was returnable the 16th day of February, 1897.

On the 17th day of February, 1897, the county judge made an order vacating and setting aside the order theretofore made by him appointing Smith receiver.

The order appealed from vacated the order appointing a receiver upon the ground that such order contained the following statement: “At least two days’ notice of the application for the order appointing a receiver of the property of the judgment debtor having been given personally to him.” And it .being held by the county judge that the notice required by law was a written notice, and that in fact it appeared that no written notice had been given to the defendant personally or otherwise of the application for the appointment of a receiver.

The undisputed facts are that at the close of the examination of the defendant in the proceedings supplementary to execution the plaintiff’s attorney gave the following verbal notice to the defendant: “Notice is here given by plaintiff’s attorney to the defendant judgment debtor that an application for the appointment of a receiver of the property of the judgment debtor will be made forthwith to the county judge of Fulton county upon the return of the referee’s report in these proceedings.”

That thereupon, it appearing that the county judge was at that time in a different part of the county from where the examination was being conducted, it was agreed between the plaintiff’s attorney and the attorney who appeared for and represented the defendant upon such examination, that they would appear before the county judge at his chambers, in the city of Johnstown,' on Monday, the 30th day of March, 1896; and it was also agreed between such attorneys, subject to the approval of the court, that Borden-JD. Smith should be named for appointment as such receiver.

Pursuant to such agreement plaintiff’s attorney and the defendant’s attorney appeared before the county judge- on the 3.0th day of March, 1896, and the receiver they had agreed upon was then and there appointed, the defendant’s attorney at that time making no objection that no notice or proper notice of the application had heen given.

p. 220

Andrew- J. Mollis, for the appellants. '

Philip Kech, for the respondent.

The order1 appealed from should be reversed as having been impro vidently made. Conceding that the. defendant was entitled to receive two days’ notice in writing of the application, for the appointment, of a receiver, that was a requisite that he could, waive;

The proceedings were proceedings in the Supreme Court, where attorneys are recognized,, and' where their acts in the course of the proceedings in which they are ¡employed are binding upon ■ their clients. The defendant was represented- by - an attorney,, and that, attorney voluntarily agreed to appear before, the county judge at a time stated, for the purpose of attending to an. application; which is an ordinary one in supplementary proceedings: He agreed upon the receiver to be appointed, and by liis. acts waived any objections that might have been. raised by or in behalf of his client, to .'the regularity of the proceedings.

There is no claim in the moving papers that the attorney was not authorized to.appear for ¡the defendant, or that it was not a proper, case for the appointment of a' receiver. ' •

It is unnecessary' to cite precedents as to the authority of an' attorney to appear for his client, and as to the extent to which he can bind him or waive requirements of practice in the progress of litigation or of special proceedings.

The order should be reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars costs..

All concurred.

Order reversed, with ten dollars costs and disbursements- of this appeal, and the motion denied, with ten dollars costs.,