Hyperlawhypertext legal database In re the Voluntary Dissolution of the Vertical Tube Boiler Co. 38 N.Y. St. Rep. 528

← Cases

In re the Voluntary Dissolution of the Vertical Tube Boiler Co.

38 N.Y. St. Rep. 528 Court N.Y. Super. Ct. Decision date 1891-05-04 English

Contents

Majority

p. 528
In the Matter of the Voluntary Dissolution of The Vertical Tube Boiler Co.
(New York Superior Court, General Term,
Filed May 4, 1891.)

Headnote

Corporations—Receiver.
An order appointing a receiver of a corporation on its voluntary dissolution will not be amended so as to permit the entry of judgment in actions previously commenced against it and in which attachments were issued, where the receiver has not been made a party defendant or substituted for the company in such actions.
Appeal from order denying motion of creditors who had filed a petition for the modification of the order of injunction appointing the receiver.
Bullard & Shannon, for app’lt; J. C. O'Conor, Jr., for resp’t.

Before the appointment of the receiver, the petitioning creditors had begun actions in the city court, and had obtained orders of attachment which had been levied upon property of the corporation. After the appointment of the receiver these petitioning creditors presented their petition that the order-

p. 529
of injunction against creditors be modified so as to allow the petitioners to enter judgment and issue executions in the actions in the city court.

The motion was denied on the ground that the receiver had not been made a party defendant or substituted for the company as defendants in those actions.

It clearly would not have been proper to allow the creditor to proceed ex parte, and without such protection to the assets as the presence of the receiver would furnish. Under all circumstances, if the attachments were valid, there was a lien upon the property levied upon which would be preserved, and, as far as proper, satisfied in the administration of the assets.

The appellants’ counsel insists that at least the injunction order should have been modified so as to allow the entry of judgment and the issuing of execution, unless the receiver should within ten days apply to be made a party defendant to the action, and such a modification was not asked of the court below. There is no reason for granting, at least at this time. If hereafter there is any improper delay on the part of the receiver, it will be in time to have due protection from the delay.

Order affirmed, with ten dollars costs.

Mo Ad am, J., concurs.