Majority
p. 105David R. Daly, as Receiver, etc., Plaintiff, v. Joseph E. Wood et al., Defendants. (Supreme Court, New York Special Term, October, 1899.)
Headnote
Calendar — Receiver in supplementary proceedings not entitled to a preference — Code Civ. Pro., § 791, subd. 5.A receiver in supplementary proceedings cannot be said to be “ appointed'by the court”, within the meaning of subdivision 5 of section 791 of the Code of Civil Procedure, and hence his action as such receiver is not entitled to a preference on the calendar under that section.
Motion for a preference on tibe calendar.
O. D. Evans, for motion.
Wm. 0. Wilson, opposed.
This is a motion to place a cause on the preferred calendar, on the ground that the sole plaintiff is a receiver. Section 791 of the Code, subdivision 5, provides for a preference in cases where “ a receiver appointed by the court ” is the sole plaintiff or sole defendant. In the case at bar the receiver was appointed in supplementary proceedings. Section 2464 of the Code provides for the appointment of a receiver of the property of a judgment debtor by “ the judge to whom the order or warrant is returnable,” etc. In the case at bar the complaint sets forth the appointment of the receiver by Justice Hascall, of
p. 106
the City Court. I do not think that the preferred calendar should be weighed down with cases instituted by receivers in supplementary proceedings, as a strict interpretation of the statute does not appear to require it. The motion for a preference should be denied, but without costs. The request for the removal of the cause from the Special Term calendar, made on behalf of defendants, is not properly before me, as no notice of motion has been served.
Motion denied, without costs.