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La Femina v. Arsene

77 N.Y.S. 206 Court N.Y. App. Div. Decision date 1902-06-19 English

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p. 206
LA FEMINA v. ARSENE et al.
(Supreme Court, Appellate Division, Second Department.
June 19, 1902.)

Headnote

Appeal—Proceedings on Reversal.
Where the supreme court decided that the appointment of a receiver was unauthorized, the court below had no authority to recognize the validity of his appointment by an order directing his discharge and retention by him of an amount fixed as his fees.
Appeal from special term, Kings county.
p. 207
Action by Gennaro La Femina against Arsen Arsene and others. From an order discharging a receiver and directing disposition of the funds, defendants appeal. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Jacob Fromme, for appellants.
Henry A. Powell, for respondent.

The facts of this controversy antecedent to the making of the order appealed from are quite fully stated in the opinions rendered upon previous appeals. La Femina v. Arsene, 69 App. Div. 285 , 74 N. Y. Supp. 749 ; Id. (May 29, 1902) 76 N. Y. Supp. 576 . The order appealed from directs the discharge of the receiver, whose appointment was vacated upon the last appeal to this court, the retention by him of an amount fixed as his fees, and the payment of the balance of the proceeds of the sale of the property to Cornelius P. McLoughlin, the attorney for the plaintiff, who claims under an alleged assignment from the latter. In view of our decision that the appointment of the receiver was wholly unauthorized, and that a judgment has been recovered by the appellants against the plaintiff for the conversion of the goods which were the subject of the action, and on which judgment a receiver in supplemental proceedings has been appointed, we think the court below' was without power to make any order recognizing the validity of the first receivership. The property in the hands of the first receiver should have been left subject to the enforcement of any rights of the appellants in the premises.

It is proper to add that the order of this court reversing the order appointing the receiver was rendered prior to the granting of the order herein appealed from.

Order reversed, with $10 costs and disbursements.

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