Glines v. Binghamton Trust Co. — 22 N.Y.S. 1023

Majority

p. 1023

GLINES v. BINGHAMTON TRUST CO.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

1. Receivers—Appointment by Final Decree—Temporary Receiver.

Code, § 713, subd. 1, provides that a receiver may be appointed before final judgment on the application of a party who has established an apparent right to or interest in the property, where it is in the possession of an adverse party, and there is danger that it will be lost or materially injured. ’ Subdivision 2 provides that a receiver may be appointed “by or after the final judgment, to carry the judgment into effect, or to dispose of the property according to its direction.” Held, that the appointment of a receiver by final judgment supersedes the action of the same court in appointing a receiver in the same action before judgment, and the receiver last appointed is entitled to the possession, and to make disposition, of the property.

2. Same—Injunction.

An injunction restraining a receiver, appointed by a final judgment, from interfering with a temporary receiver, appointed before judgment in the same action, is erroneous.

Appeal from special term, New York county.

Action by. George E. Glines, as receiver of the Supreme Sitting of the Order of the Iron Hall, against the Binghamton Trust Com-

p. 1024

pony, as receiver of the Supreme Sitting of the Order of the Iron Hall, impleaded, and others, for an injunction restraining defendants from interfering with plaintiff as temporary receiver. From an order granting a temporary injunction, defendant the Binghamton Trust Company appeals.

Reversed.

Argued before VAN BRUNT, P. J., and INGRAHAM, J.

Edmund O’Connor, (Alfred Ely, of counsel,) for appellant. Morse, Koones & Findlay, (Howard H. Morse and George Norris, of counsel,) for respondent.

By section 713 of the Code, provision is made for the appointment of receivers before final judgment and by the final judgment. Subdivision 1 of this section provides that a receiver may be appointed “before final judgment, on the application of a party who has established an apparent right to or interest in the property, where it is in the possession of an adverse party, and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed.” The object of this provision is clearly for the preservation of the property until the court, by its final judgment, shall make such disposition of it as justice requires, and appoint a receiver to carry its judgment into effect. Subdivision 2 of the same section provides for the appointment of a receiver by final judgment. That provision is that a receiver may be appointed “by or after the final judgment, to carry the judgment into effect, or to dispose of the property according to its directions.” . It is apparent that the appointment of the receiver by the final judgment, to carry the judgment into effect or to dispose of the property, is the exercise of a different and distinct power conferred upon the court from that which is given for the purpose of preservation of the property during the pendency of the action; and the exercise of this final power necessarily supersedes action which has been merely temporary in its character, for the preservation, and taken solely for the protection, of the property until such final power is exercised. By the final judgment in the action, in Broome county, of Mosher v. Supreme Sitting of Order of Iron Hall, this court makes provision for the final disposition of the property in this state of the foreign corporation, and appoints the Binghamton Trust Company, the defendant herein, permanent receiver of the property, assets, and funds of the defendant within the state of New York, and authorizes and directs it to collect, demand, and receive, and to distribute the same among the persons entitled thereto, as in said decree directed. This final judgment was therefore the final direction of the court as to the disposition of the property, and the appointment of a receiver to carry such final judgment into effect seems to have superseded all previous action taken for the purpose of the preservation of the property until a judgment should be entered by the court for its final distribution, including the appointment of temporary receivers to preserve the property. The order appealed from enjoins the Binghamton Trust Company, the permanent receiver, from performing the duties which were imposed

p. 1025

upon it by the judgment appointing it; and, as it was the duty of the defendant to carry out the provisions of such final judgment, the order was erroneous. No question is presented on this record as to a conflict of jurisdiction between different courts, as to which court shall administer the estate, both actions being in the same court; the only question being as to the method by which the court shall protect and distribute this -property. Therefore many of the authorities which have been cited on this appeal have no bearing upon the question presented. We think the order appealed from should be reversed, with $10 costs and disbursements, and the motion for an injunction denied, with $10 costs, and the temporary injunction vacated.