Springs v. Bowery National Bank — 45 N.Y. St. Rep. 327

Majority

p. 327

Richard A. Springs, Rec’r, Resp’t, v. The Bowery National Bank, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Receives—Pboof of appointment.

■ In an action by the receiver of a corporation, where his due appointment is denied by the answer, it is necessary, in order to prove such appointment, to prove the commencement of an action and that the court acquired jurisdiction of the corporation as provided by § 1, of chap. 378, Laws 1883 ; the order of appointment is insufficient to prove the appointment.

Appeal from judgment entered after decision of the court at special term.

J. B. Marvin, for app’lt; W. W. Jeriks, for resp’t

The complaint alleged that by an order of the supreme court, made at a special term thereof, held on the 16th December, 1890, before Justice George P. Andrews, the plaintiff was duly appointed receiver of the property and effects of the I. Herrman Manufacturing Company. The defendant, in answering this allegation, alleged on information and belief that the court in which said action was brought never acquired jurisdiction of said .corporation or had power or jurisdiction to render or make any j udgment or order therein, or to make the order appointing the receiver mentioned in said complaint, and that said order and the judgment rendered in said action are without jurisdiction and void.

The plaintiff to support this allegation of the complaint put in ■evidence the order appointing the plaintiff receiver made in the .action of Walter Kenzie v. Herman Mfg. Co., and filed December 16, 1890. We find no evidence of any action commenced in which this order was entered, or that the court by service of process ever acquired any jurisdiction over the corporation. And we think that in the face of this denial of the answer, the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation.

p. 328

By § 1 of chap. 378, of the Laws of 1883, authority is conferred upon the supreme court to appoint receivers of domestic corporations, and it is there provided that “ any order appointing a receiver, otherwise made, shall be void.”

And it was necessary to prove the commencement of an action and that the court obtained jurisdiction over the corporation as provided in that section of the statute before cited, to sustain the allegation that the plaintiff was duly appointed receiver.

The judgment must, therefore, be reversed and a new trial, ordered, with costs to appellant to abide event

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.