Manley v. Rassiga — 20 N.Y. Sup. Ct. 288

Majority

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LUCIUS N. MANLEY, as Receiver, etc., of AUGUST RASSIGA, Respondent, v. MARY R. A. RASSIGA, MICHAEL H. CULLINAN and AUGUST RASSIGA, Appellants.

Headnote

Receiver — appointment of, by officer of special jurisdiction — what allegation as to appointment sufficient.

In an action brought by a receiver appointed in supplementary proceedings, the complaint alleged that, “by an order of determination, then duly made by Hon. John J. Armstrong, county judge for the county of Queens, the plaintiff was appointed receiver,”

Held, that his appointment was sufficiently alleged, and that a demurrer, on the ground that the complaint did not show that he had legal capacity to sue, was properly overruled.

Appeal from an order made at the Special Term overruling a demurrer to the complaint. The action was brought by the plaintiff, as receiver of August Rassiga, to set aside certain transfers made by him, on the ground that they were fraudulent as against his creditors. The complaint alleged, in regard to the plaintiff’s appointment: That on the 31st day of May, 1877, at Jamaica, Queens county, New York, upon an application made by John Kane, a judgment creditor of said August Rassiga, in proceedings supplementary to execution and by an order of determination, then

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duly made by Hon. John J. Armstrong, county judge for tbe county of Queens, the plaintiff was appointed receiver of tbe property of said August Rassiga; and upon tbe filing and approval of bis bond, as hereinafter mentioned, became and still is such receiver and authorized to bring this action.

Tbe defendant demurred, on tbe ground that tbe complaint did not show that tbe plaintiff bad legal capacity to sue, and that it did not state facts sufficient to constitute a cause of action.

George F. Langbeim, for tbe appellants.

There is no sufficient allegation in tbe amended complaint showing tbe receiver’s authority to sue or bring tbe action, or that be was regularly or duly appointed. Tbe rule is stringent as to creditors’ actions by receivers. (Goope v. Bowles, 18 Abb. Pr. Rep., 443 ; S. C., 42 Barb., 87 .) Tbe receiver’s appointment and bis authority to sue must be duly alleged. (Gillet v. Fairchild, 4 Denio, 80 ; White v. Joy, 7 Barb., 204 ; Bamgs v. McIntosh, 23' id., 204 ; Bolles v. Buff, 43 N. Y., 469 ; Story v. Formam, 25 id., 214 ; ATbamy Ins. Go. v. Vcm Yranhen, 42 How., 281 ; Stewart v. Beebe, 28 Barb., 34 ; Dayton v. Gonnah, 18 How., 326 ; Gheney v. Fish, 22 id., 236 ; Rockwell v. Merwin, 45 N. Y., 178 .) There is no allegation in tbe amended complaint that tbe plaintiff, as receiver, has filed and recorded his alleged order of appointment, nor is there any allegation of facts, or otherwise, showing that the plaintiff has done and performed any of tbe acts and requisites required by section 298 of tbe Code of Procedure, in order to vest tbe title of tbe real estate or property in him so as to permit him to bring this action. Tbe filing and recording of tbe order is a condition precedent to tbe vesting of title in the receiver, and it therefore follows that an allegation of tbe fact of such filing and recording in tbe complaint is essentially necessary to show title in tbe receiver. (Gillet v. Fairchild, 4 Denio, 80 ; Hedges v. Bum-gay, 16 Abb. Pr. [N. S.], 313 ; Jnliand v. Rathbóne, 39 N. Y., 369 ; Rogers v. Gornimg, 44 Barb., 229 ; Becker v. Torramce, 31 N. Y., 631 ; Glarh v.' Brockway, 42 id. [3 Keyes], 15; Riddle’s Supplementary Proceedings, 142, and cases cited; Hoffman’s Provisional Remedies, 526.) The complaint does not show that a transcript of the judgment was filed and docketed in Queens county. Tbe lien of a judgment does not attach until docketing; and as the lien is

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entirely regulated by statute, equity cannot extend it. (Buoham, v. Summer, 2 Barb. Ch., 165 ; Fort v. Billaye, 65 id., 521, Gen. T., 1873).

Wm. G. Reddy, for tbe respondent.

Tbe allegation of tbe appointment of tbe plaintiff as receiver is sufficient. Such appointment is averred to have been made on the 31st May, 1877, in proceedings supplementary to execution, by Hon. J. J. Armstrong, county judge of Queens county, “ by an order of determination then duly made.” By section 161 of tbe old Code, and which has been preserved untouched in the new Oode (section 532), it is provided that in pleading a determination of a court or officer of special jurisdiction, it shall not be necessary to state tbe facts conferring jurisdiction, but tbe determination may be stated to have been duly made. This averment in this case, carries with it tbe filing of tbe order. . "Without all tbe steps are taken to make a valid determination, it is not duly made. Tbe rights of tbe plaintiff, as receiver, are'finally settled by the Court of Appeals, in Bostwick, v. Menck ( 40 N. Y., 383 ). He became vested with the legal title to all the personal property of tbe debtor. “ Such appointment conferred upon him tbe further right to prosecute such actions, to set aside all transfers of property made by tbe debtor, to defraud bis creditors, as tbe creditors themselves could have maintained.” Tbe complaint avers bis appointment to have been duly made, and this action is brought to set aside a transfer made in fraud of creditors. The judgment creditor could have maintained this action before the appointment of the receiver, after tbe issuing and return of an execution unsatisfied, as against tbe property of tbe debtor.

The order overruling tbe demurrer, should be affirmed with costs, with leave to defendant to answer in twenty days, on payment of costs.

Gilbert, J., concurred; Dtkman, J., not sitting.

Order overruling demurrer to amended complaint affirmed, with costs and disbursements, with leave to defendant to answer in twenty days, on payment of costs.