Majority
p. 220Jacob Hirschfeld, App’lt, v. Adolph S. Kalischer et al., Resp’ts. (Supreme Court, General Term, First Department, Filed November 16, 1894.)
Headnote
1. Pleadings—Demurrer—Receiver.A failure to allege leave to sue a receiver is not ground of demurrer.
3. Same—Leave nunc pro tune.
Leave nune pro tuna may be granted after action brought.
Appeal from an interlocutory judgment sustaining a demurrer to the complaint.
Louis Marshall, for app’lt; Hoffman Miller, for resp’ts.
In addition to the grounds assigned and discussed in the case of Hirschfeld v. Kursheedt (decided herewith) 63 St. Rep. 217 , another question is here presented. It is insisted that there is a defect of parties defendant, based upon the theory that the complaint fails to show that the plaintiff has obtained leave to make the receivers parties defendant. As matter of fact, the receivers are defendants, and the objection is directed to the failure
p. 221
to allege that leave was obtained to make them such defendants. While it would have been better to have Secured permission, and to have alleged it, we think that the appellant is right in his contention that it has never been held in this state that the commencement of an action against a receiver without leave presents a jurisdictional question; the courts never going beyond the proposition that, when an action has been commenced against a receiver without leave, the court acquires jurisdiction of the receiver by service of the summons, and the remedy applied is either a stay of proceedings upon the part of the plaintiff, or to punish him for contempt of court, or both, and upon such application, if the court believes that the case is a proper one for granting leave, such permission will be granted nunc pro tune. To avoid this objection, we think the plaintiff should be permitted to apply for leave, if he avails himself of the’permission granted to amend. Apart from this, however, upon the grounds and for the reasons stated in the Kursheedt Case, the judgment appealed from should be affirmed, with costs and disbursements, with leave to plaintiff, on payment of the same, to plead over.
All concur.