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Hirshfeld v. Kalischer

30 N.Y.S. 1027 Court N.Y. Gen. Term Decision date 1894-11-16 English

Delivered by O’BRIEN, J.

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p. 1027
HIRSHFELD v. KALISCHER et al.
(Supreme Court, General Term, First Department.
November 16, 1894.)

Headnote

-1. Receivers—Actions against—Alleging Leave to Sue.
Failure to allege that leave to sue a receiver was obtained is not a . ground of demurrer, but the remedy is either to stay proceedings or to punish plaintiff for contempt or both.
3. Same—Granting Leave Nunc pro Tunc.
Leave to sue may be granted nunc pro tunc after action has been brought against a receiver.
Appeal from special term, New York county.
Action by Jacob Hirshfeld, suing in his own behalf, etc., against Adolph S. Kalischer and others, impleaded. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
Louis Marshall, for appellant.
Hoffman Miller, for respondents.

In addition to the grounds assigned and discussed

in the case of Hirshfeld v. Kursheedt (decided herewith) 30 N. Y. S. 1023 , another question is here presented. It is insisted that there is a defect of parties defendant, based upon the theory that the complaint fails to show that the plaintiff has obtained leave to make the receivers parties defendant. As matter of fact, the receivers are defendants-, and the objection is directed to the failure to allege that leave was obtained to make them such defendants. While it would have been better to have secured permission, and to have alleged it, we think that the appellant is right in his contention that it has never been held in this state that the commencement of .an action against a receiver without leave presents a jurisdictional • ■question; the courts never going beyond the proposition that, when .an action has been commenced against a receiver without leave, the court acquires jurisdiction of the receiver by service of the .summons, and the remedy applied is either a stay of proceedings upon the part of the plaintiff, or to punish him for contempt of •court, or both, and upon such application, if the court believes that ithe case is a proper .one for granting leave, such permission will

p. 1028
be granted nunc pro tunc. To avoid this objection, we think the plaintiff should be permitted to apply for leave, if he avails himself' of the permission granted to amend. Apart from this, however,, upon the grounds and for the reasons stated in the Kursheedt Case,, the judgment appealed from should be affirmed, with costs and disbursements, with leave to plaintiff, on payment of the same, to-plead over. All concur.

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