Logan v. McCall Publishing Co. — 55 N.Y. St. Rep. 794

Majority

p. 794

Walter Logan, App’lt, v. The McCall Publishing Co., Resp’t.

(Court of Appeals,

Filed December 19, 1893.)

Headnote

Supplementary proceedings—Foreign corporations.

Proceedings supplementary to execution may be instituted against a foreign corporation doing no business and having no agency in this state.

p. 795

Appeal from order of the Hew York common pleas, general term, affirming order denying motion to extend a receivership to plaintiff’s judgment.

George W. Stevens, for app’lt; no appearance for resp’t.

The order of the special term, which was affirmed by the general term, denied the motion to extend the receivership under an appointment in a prior action, to the judgment of the plaintiff in this action, on the ground that the provisions of the Code do not authorize supplementary proceedings against a foreign corporation in any case. It was held under the former Code that the provisions of. that Code relating to supplementary proceedings applied to natural persons only. Hinds v. C. & N. F. R. R. Co., 10 How., 487 ; Sherwood v. Buffalo, etc., R. R. Co., 12 id., 136. These were cases of supplementary proceedings under judgments against domestic corporations, and it was decided that remedies against such corporations, in case of insolvency, must be had under the provisions of the revised statutes. In this case it appears that the defendant is a foreign corporation, not doing any business in this state nor having any business or fiscal agency therein, or agency for the transfer of its stock, and by § 1812 of the Code of Civil Procedure such a corporation is excluded from the operation of § 1810, providing for the appointment of receivers of the property of corporations.

Section 2468 is a new provision, and seems by necessary implication, to authorize supplementary proceedings in a case like this. It declares: “ This article doe's not apply where the judgment debtor is a corporation created by or under the ' laws of this state, or a foreign corporation specified in § 1812 of this act, except in those actions or special proceedings brought by or against the people .of the state.” The defendant is not one of the foreign corporations specified in § 1812. The article in which § 2463 is found is the one regulating proceedings supplementary to execution. Section 2435 authorizes supplementary proceedings against a “ judgment debtor,” making no distinction between a natural person and a corporation. Section 2458 requires that the execution, in case the judgment debtor is not, when the execution is issued, a resident of the state, must have been issued to the sheriff of the county where the judgment roll is filed, unless the execution was issued out of a court other than that in which the judgment was rendered, and in that case to the sheriff of the county where the transcript of the judgment is filed.

Section 2452 provides how the order for the examination may be served upon a corporation. The only limitation upon the right to take proceedings supplementary to execution against any class of debtors is contained in § 2463, and this plainly does not embrace a foreign corporation doing no business and having no agency in this state; and this was the situation of the defendant.

The case presented to the special term showed a compliance with all the conditions precedent to the maintenance of

p. 796

supplementary proceedings. The plaintiff had a valid judgment upon which execution had been issued to the proper county and returned unsatisfied. The defendant was a nonresident It was not a corporation specified in § 1812. The plain implication from § 2463 rendered it subject to proceedings supplementary to execution. The policy of the state does not preclude the creditor of such a corporation from obtaining a preference upon assets here.

We think the orders of the special and general terms should be reversed, and that the matter should be remitted to the special term for further proceedings.

All concur.