Springs v. Bowery Nat. Bank — 18 N.Y.S. 574

Majority

p. 574

Springs v. Bowery Nat. Bank.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

Action by Receiver—Authority to Sue—Validity oe Appointment.

An order appointing plaintiff receiver of a domestic corporation is insufficient evidence of such appointment, in the absence of evidence of an action begun agai nst and process served on the corporation for the appointment of a receiver, where service of such process is denied, under Laws 1883, c. 378, § 1, conferring on-the supreme court the power to appoint such receiver in an action for that purpose, and providing that “any order appointing a receiver otherwise shall be void. ”

Appeal from special term, New York county.

Action by Richard A. Springs, receiver of the I. Herrman Manufacturing -Company, against the Bowery National Bank. Prom a judgment for plaintiff, defendant appeals.

Reversed.

Argued before Van Brunt, P. J„ and O’Brien and Ingraham, JJ.

James B. Marvin, for appellant. William W. Jenks, for respondent.

The complaint alleged that by an order of the supreme •court, made at a special term thereof, held on the 16th December, 1890, before Justice George P. Andrews, the plaintiff was duly appointed receiver •of the property and effects of the I. Herman Manufacturing Company. The -defendant, in answering this allegation, alleged, on information and belief, .that the court in which said action was brought never acquired jurisdiction ■of said corporation, or had power or jurisdiction to render or make any judgment or order therein, or to make the order appointing the receiver mentioned in said complaint, and that said order and the judgment rendered in -said action were without jurisdiction, and void. The plaintiff, to support the .allegation of the complaint, put in evidence the order appointing the plaintiff receiver, made in the action of Walter Kenzie v. Herman Manuf'g Co., and filed December 16, 1890. We find no evidence of any action commenced, in which this order was entered, or that the court by service of process ever acquired any jurisdiction over the corporation; and we think that in the face of this denial of the answer the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation. By section 1 of chapter .378 of the Laws of 1883, authority is conferred upon the supreme court to appoint receivers of domestic corporations; and-it is-there provided that “any •order appointing a receiver otherwise shall be void.” And it was necessary

p. 575

to prove the commencement of an action, and that the court obtained jurisdiction over the corporation, as provided in that section of the statute before cited, to sustain the allegation that the plaintiff was duly appointed receiver. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant, to abide event.