In re the Trustees of the Simonds Soap Co.

In May, 1891, a majority of the trustees of the Simonds Soap Co., a corporation created under the laws of this state, presented their petition to the court praying for a final order dissolving said corporation, and thereupon on said day, upon due notice to the attorney general, an order was made requiring the creditors to show cause why the corporation should not be dissolved. Thereafter, on May 25th, due notice was given to the attorney general of a motion to be made for an order appointing a temporary receiver and enjoining creditors from prosecuting suits, on the return of which notice an order was made appointing a temporary receiver and enjoining creditors from prosecuting suits.

At the time of the making of this order the appellant was prosecuting a suit against the Simonds Soap Co., in the City Court of Hew York, and upon the affidavit of his attorney an order was made requiring the receiver to show cause why said injunction order should not be vacated, so far as it restrained and enjoined the appellant from proceeding with his said action to judgment and execution. This motion was denied, and from the order thereupon entered the creditor, the appellant, appeals to this court.

It is claimed upon the part of the appellant that the appointment of the temporary receiver must be complete by the actual entry of the order appointing him before any application can be made for an injunction restraining creditors; and our attention is called to the case of In re French M'fg Co., 12 Hun, 488 , in which it was decided that upon the presentation of an application for a voluntary dissolution under the provisions of the Revised Statutes,

By § 2423 of the Code, which relates to the procedure for the-dissolution of a corporation, it is provided that if it shall be made to appear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceeding before final order, on motion of the petitioners on notice to the attorney general, or on motion of the attorney general on notice to the corporation, appoint a temporary receiver, etc. ,

The last clause provides that if such receiver be appointed the court may in its discretion, on like motion and notice, with or without security, at any stage of the proceeding before final order, grant an injunction restraining the creditors of the corporation from bringing any action against said corporation or from taking any further proceedings in such an action theretofore commenced.

It is perfectly, apparent that the intention of this legislation is to guard'the assets of an insolvent corporation against the invasions of creditors whereby they will obtain preferences in the collection of their debts; and it was found necessary, in order that the proceedings should be effectual in preventing such a result, to-amend the. provisions of the Code, giving- the courts additional power iu this direction, viz., to appoint a temporary receiver before final order, and granting an injunction against the prosecution of suits, against th.e corporation. The latter remedy is incidental,, depeyding upon the former. The court has no right tó. grant an injunction unless it appoints a receiver, who shall protect the-property for- the benefit of all the creditors of the corporation. Mow it is. clear that until the court has determined upon the propriety of the appointment of a receiver it cannot grant an inj unction, and therefore the decision in the case cited was entirely correct. All that that case held was that an injunction could not be granted at the time that the order to show cause was granted why dissolutibn should; not be had. The question of dissolution and of the appointment- .of a receiver depended upon the insolvency of the corporation, and if that appeared to the court, and a receiver was appointed, then a temporary receiver might be appointed. Mow, the court having determined- upon the appointment of a receiver, and: that that was necessary for the protection of the property.of the corporation, then it had the right' to grant, the injunction.

The remedies went hand in hand, the injunction depending upon thq appointment oí a receiver, although the appointment of a receiver didinot depend upon the injunction. The receiver was appointed when the- court entered the order directing his appointment, and the creditors.were enjoined at the same time; and the injunction is not: granted except a receiver be appointed.

In construing the terms of this legislation, the object to be obtained -must necessarily be considered. There was no propriety

We think the order appealed from should be affirmed, with ten dollars costs and disbursements, but with leave to apply to the court below for a modification of the injunction permitting him to enter judgment, and issue execution, in order to form the basis of an action against the stockholders of the corporation if he be so advised.

Barrett, J., concurs.