Lehigh Coal & Navigation Co. v. Central Railroad Co. of New Jersey

Majority

p. 270

The Lehigh Coal and Navigation Company v. The Central Railroad Co. of New Jersey.

(Supreme Court, General Term, First Department,

Filed March 3, 1887.)

Headnote

Corporations—Appointment of receiver—Proceedings to be brought by WHOM.

The authority of the court to appoint a receiver is conferred by statute, which does not provide for the bringing of such a proceeding by a creditor at large. •

Appeal from an order denying a motion made by one Hotchkiss, a judgment creditor of the defendant, to vacate an order entered in this action appointing a receiver of the defendant.

Robert Sewell, for Mr. Hotchkiss, app’lt; Robert W. Re Forest, for the receiver, resp’t.

The order appointing a receiver in the case at bar is claimed to have been made in this action, brought by the plaintiffs, creditors and stockholders of the defendant, and that the action was similar in character to the case of Woerishoffer v. The North River Construction Company, in which the appointment of a receiver has been sustained.

In the case of Woerishoffer, the bill was filed by a stockholder, but in the case at bar, although the points of the respondent claim that the bill was filed by the plaintiffs as stockholders as well as creditors, an examination of the complaint shows that the bill was filed by the plaintiffs as creditors, and as creditors only of the defendant, there being no allegations in the bill that the plaintiffs were stockholders of the defendant.

It is not pretended that the plaintiffs were judgment creditors of the defendant, but the only allegations in the complaint are that they hold claims against the defendant which have not been established by judgment.

It is thus seen that the facts in the case of Woerishoffer were essentially different from the case at bar, and that case is no authority to sustain the proposition that this court has any general power to appoint receivers of the property of any corporation, whether domestic or foreign, except such as is derived from our statute. This statute distinctly provided that a receiver of a corporation could only be appointed by the supreme court, arid in one of the cases enumerated therein, and the case of a creditor at large is not mentioned therein.

p. 271

It would seem, therefore, that the plaintiff filing his bill simply as a creditor at large on behalf of himself and of all others similarly situated, conferred no jurisdiction upon the court appointing the receiver.

This question, however, should not. be finally adjudicated perhaps, without formal notice to the plaintiff, although probably it has had full notice of these proceedings, because the counsel appearing upon this appeal for the receiver.was the attorney for the plaintiffs herein when the bill was filed, and verified the same as such attorney.

The order appealed from should be affirmed, but without costs, and leave should be given to renew the motion upon giving notice to the plaintiffs in this action.

Brady and Daniels, JJ., concur.