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Sherwood v. Baker

39 N.Y. Sup. Ct. 462 Court N.Y. Gen. Term English

Judges Pratt, J., concurred; Barnard, P. J., not sitting.

Delivered by DyemaN, J.;

Contents

Majority

p. 462
In the Matter of the BANK OF SING SING. JAMES K. O. SHERWOOD, Receiver, etc., Respondent, v. HORACE BAKER, Administrator, etc., of SANDFORD CHADEAYNE, Deceased, Appellant.

Headnote

Insolvent banks — proceedings to enforce the liability of stockholders —when ba/rred, by lapse of time — 1849, chap. 226.
Appeal from an order made at a Special Term denying a motion to set aside an order of reference.
These proceedings were instituted to enforce the liability of stockholders of insolvent banks under chapter 226 of 1849.
Henry Willets was appointed the receiver of the Bank of Sing Sing on December 31, I860.. He declared a dividend of eight per cent March 1, 1862, fourteen months after his appointment. He was removed December 31, 1863, and after the appointment and removal of two intermediate receivers, Mr. Sherwood, the present receiver, was appointed in June, 1878. He made a report May 4, 1882, and thereupon an order of reference was made appointing a referee, who was directed, after giving notice to all persons concerned, to apportion, the debts and liabilities of the bank, contracted after the 1st day of January, 1850, and remaining unsatisfied, among the stockholders of said bank ratably in proportion to their stock. A motion to vacate this order was made at Special Term and denied, and from this order this appeal was taken.
The court at General Term said : “The order of reference should
p. 463
have been vacated, because it never should have been made. Proceedings under these receiverships have been permitted to sleep so long that they should know no waking. If the various statutory limitations and restrictions as to time have no strict application, then certainly twenty years is a time beyond which, in analogy to the utmost limitation, no proceedings should be allowed.”
The order appealed from should be reversed, with costs and disbursements.
¡Samuel Watson, for the appellant.
John S. Smith and James S. Stearns, Tor .the respondent.

Opinion by

Pratt, J., concurred; Barnard, P. J., not sitting.

Order reversed, with costs and disbursements, and motion to vacate reference granted, with costs.