Duncan v. George C. Treadwell Co. — 63 N.Y. St. Rep. 790

Majority

p. 790

James R. Duncan, Resp’t, v. George C. Treadwell Company et al., Def’ts. F. T. Herz et al., Judgment Creditors, App’lts.

(,Supreme Court, General Term, Third Department,

Mled December 4,1894.)

Headnote

Corporations—Receiver.

A receiver, appointed in an action against a corporation and two directors for waste, will not be continued in office after such directors have been removed, in the absence of a request to dissolve the corporation or dis tribute the assets.

Appeal from an order, denying a motion by the judgment creditors of a corporation, for an order directing the receiver to pay to the sheriff the amount due on their judgments.

Simpson & Werner (Louis Werner, of counsel), for app’lts; Zeb. A. Dyer, for resp’ts.

If the receiver had been appointed in an action for the dissolution of the George C. Treadwell Company, and the distribution of its assets among creditors, brought by the attorney-general or a judgment-creditor after an execution had been returned unsatisfied, or in a proceeding for the voluntary dissolution of the corporation, the order from which the appeal is taken would not have been disturbed. Attorney- General v. Continental Life Ins. Co., 28 Hun, 360 ; Woerishoffer v. North River Const. Co., 99 N. Y. 398 . But this was an action by a stockholder against the corporation and two of its directors. Plaintiff alleged waste of assets in consequence of the wrongdoing and mismanagement of said directors and others confederating with them, and a scheme of said persons to wreck the corporation, and asked for an accounting by said directors, that the corporation and its officers be restrained from exercising any of the corporate rights, and for the appointment of a receiver. Plaintiff did not ask to dissolve the corporation or distribute its assets, but commenced the action on the ground of the wrongdoing of the said directors and their confederates, and hence the waste of assets and mismanagement of the corporate business. Since the commencement of the action a new election of directors of the corporation has been had, and the two malfeasant directors removed, and plaintiff and those in accord with him are in control of the corporation. It is hence difficult to see on what ground the receivership continues. Directors against whom no charge is made are in control of the corporation, and, although the action may be continued for the purpose of a judgment against the malfeasant directors, there can be no object in continuing such receivership. The object for which plaintiff obtained the appointment of the receiver has been attained by the voluntary action of the corporation and its stockholders. We are not aware of any statute or law which justifies the continuance of the receivership for the purpose of giving the corporation time to raise money to pay its debts. There seems to‘be no other reason why there should continue to be a receiver of the George C. Tread-well Company. If the corporation is insolvent and unable to meet its obligations, it should make the application for a volun

p. 791

ary dissolution under the provisions of the statute. We think-the papers before us clearly show, assuming that the appointment •of the receiver in this action was originally authorized, that the ■continuance of the receivership is unnecessary and improper. However much we might desire to, under the peculiar circumstances of this case, we cannot properly make use of such receivership for the purpose of giving time to the corporation to meet its obligations. It follows that the petitioners who have obtained judgment against the corporation should not be delayed in the collection thereof by an unnecessary receivership which should not continue. For reasons unnecessary to state, we also think that the prayer of the petitioners should have been granted, although it had not been made to appear at that time that the two malfeasant directors had been removed. See Webster v. Lawrence, 47 Hun, 565 ; 15 St. Rep. 140 .

The order should be reversed, with costs, and the motion granted, without costs, permitting the sheriff to proceed and sell the coporate property.

Mayham, P. J., concurs; Herrick, J., not acting.

Cases cited

Woerishoffer v. North River Constraction Co. 99 N. Y. 398 N.Y. 1885-06-23 p. 790