National Park Bank v. Goddard — 48 N.Y. St. Rep. 743

Majority

p. 743

The National Park Bank, Resp’t, v. Warren N. Goddard et al., Def’ts. Joseph Lillianthal, App’lt, Henry Winthrop Gray, Rec’r, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 20, 1892.)

Headnote

1. Receiver—Prior attaching creditor—Modification of order.

A prior attaching creditor who is not a party to an action brought by a junior attaching creditor against other creditors who brought replevin actions to settle claims to the property, has a right to appeal from an order denying his motion for a modification of an order of receivership by striking out so much thereof as directs the sheriff to deliver to the receiver property held by him under his warrant of attachment.

3. Same.

It is no defense to an application for such modification that there was no property in the receiver’s hands except that attached at the suit of the plaintiff, unless it is made to appear that the property attached in plaintiff’s suit was different from that attached in the applicant’s suit.

3. Same—Notice of motion should be given to defendants.

Notice of such application should be given to the defendants as well as to 'the plaintiff and receiver, as the latter holds the property as much for the defendants as for plaintiff.

Appeal from order denying motion on the part of the appellant, who is not a party, to vacate or modify an order appointing receiver.

D. P. Hays, for app’lt; G. Zabriskie, for receiver, resp’t.

On the 12th of May, 1891, the appellant commenced an action against Levy Bros. & Co., and obtained an attachment, which was levied on the same day on rxroperty of the defendants. The National Park Bank, the plaintiff in this action, obtained on the same day a warrant of attachment, which was levied by the sheriff upon the same property which he had attached in the appellant’s suit. After the levy of the bank’s attachment, the defendants in this action commenced actions in replevin against the sheriff, and issued requisitions to the coroner, etc., in which actions were claimed the same property attached by the sheriff. Such proceedings were had in this action that on the 23d of May, 1891, the respondent, Gray, was appointed receiver of all the property, things in action and effects seized by the coroner, under and by virtue of the several requisitions in replevin issued to him in favor of the defendants named in the title, and all property held by the sheriff under and by virtue of all warrants of attachment against Levy Bros. & Go., and the order expressly provided that the receiver take and hold the property subject to all liens, by attachment or otherwise, which exist in

p. 744

favor of any of the parties in whose favor attachments may have been issued, as well as all liens acquired by virtue of such requisitions in said replevin suits. The appellant is not a party to this action, and had no notice of the application "for the appointment of a receiver. Upon learning of the appointment, he obtained an order requiring the said receiver and the plaintiff in this action to show cause why the order appointing said receiver should not be modified by striking out so much thereof as directed the sheriff to deliver over to said receiver the property held by him under said warrant of attachment. Upon hearing the counsel for the plaintiff and receiver, the court denied the motion, and from the order thereupon entered this appeal is taken.

It is urged upon the part of the respondent that the appellant, not being a party, has no right to appeal from the order. If this position is sound, then, the sheriff being in possession of property upon which A. has a lien, in a contest between B. & C. iti respect. to that property, the court may dispose of its custody without A. having any opportunity whatever to inform the court of his rights, a proposition the mere statement uf which shows its fallacy. It is further urged that the order does not place in his custody any other property than that attached by the sheriff in favor of the plaintiff herein. That may be entirely true, because the sheriff may have attached, under the attachment issued in favor of the plaintiff herein, precisely the same property which he had already attached under the warrant issued in behalf of the appellant, which is probably the fact. The claim, therefore, that there is no property in the receiver's possession which is not attached in the suit of the plaintiff, would be no answer whatever to the application, unless it was made to appear that the property attached at the suit of the plaintiff was different and separate from that attached in the appellant’s suit. But the difficulty with the appellant’s case is that he has not notified the parties in interest on this application. The defendants are as much interested in the disposition of the property in the receiver’s hands as the plaintiff. The receiver holds the property as much for the defendants as for the plaintiff; and, therefore, when the appellant desired to interfere with the receiver's custody of that property, he was bound to notify the parties in interest, viz., the defendants as well as the plaintiff and the receiver. The motion, therefore, should have been denied upon this ground. The order should, therefore, be affirmed, but, under the circumstances, without costs, and with leave to the appellant to renew his motion upon notice to all the parties in interest

O’Brien and Lawrence, JJ., concur.