Bamberger v. Fillebrown — 67 N.Y. St. Rep. 321

Majority

p. 321

Edward S. Bamberger, as Receiver, etc., Resp’t, v. Charles B. Fillebrown et al., Impleaded, etc., App’lts.

(New York Superior Court, General Term,

Filed May 6, 1895.)

Headnote

Equity — Jurisdiction.

A court of equity has jurisdiction to entertain an action brought by a receiver in a creditor action to have priorities determined after conflicting claims has been made against the same fund remaining in his hands after a final judgment.'

Appeal from an order overruling a demurrer and from a final judgment entered thereon.

In an action in the superior court brought by Joseph Sawyer against Morris Lowenthal and others, plaintiff was appointed receiver of defendants’ property. In a subsequent action in the same court against the same parties, by defendants Fillebrown and Stevens, the receivership was extended to the action brought by them. Afterwards the receivership was extended by the supreme court in an action brought in that court bv Jeremiah Marston against the same parties. There were not sufficient assets remaining in the hands of the receiver to pay the claims of the creditors, and he brings this action to determine priorities. The complaint alleged the foregoing facts. Defendants Fillebrown and Stevens demurred to the complaint: (1) On the ground that the court had no jurisdiction ; (2) that the receiver is an officer of the supreme court, and, as such, has no legal capacity to sue defendants by reason of claims made by them against funds in his bands as receiver of the superior court; (3) that the reis a misjoinder of parties plaintiff by the receiver bringing this action against defend

p. 322

ants in his capacity as receiver of both courts; (4) that there is a misjoinder of parties defendant, in that the interest of defendant Marston' is conflicting, and that he had no interest in the subject-matter of the action until its final disposition by the superior court; (5) that the complaint does not state facts sufficient to constitute a cause of action.

A. H. Berrick, for app’lts ; Stiefel & Lauer, for resp’t.

Upon the facts alleged in the complaint, which stand admitted by demurrer, there is no misjoinder of parties-plaintiff, and the court has jurisdiction of the subject-matter of the action, and the plaintiff has set forth a sufficient cause of action. This is an action brought by a receiver in a creditors’ action to have priorities determined after conflicting claims had been made against the same fund remaining in his hands after final judgment. The jurisdiction of a court of equity to entertain such an action is-firmly established. It is no answer to say that the same result might be reached by motion. This is always doubtful, for, even if the power should exist in a particular case to pass upon conflicting claims in a summary way, yet, if a conflict as to the facts should be presented by the affidavits of the different parties in interest, the exercise of the power may be declined, and the parties left to their remedy by actiion. The judgment and order should be affirmed, with costs.

All concur.