Springs v. Bowery National Bank — 70 N.Y. Sup. Ct. 505

Majority

p. 505

RICHARD A. SPRINGS, as Receiver of the I. HERMAN MANUFACTURING COMPANY, Respondent, v. THE BOWERY NATIONAL BANK, Appellant.

Headnote

Corporations — proof necessai'y to show jurisdiction to appoint a receiver — -Laws of 1883, chap. 378, sec. 1.

Tlie complaint in an action alleged that the plaintiff was appointed receiver of a corporation by an order of the Supreme Court, which order the answer alleged that the court had never acquired jurisdiction to make. Upon the trial the plaintiff put in evidence the order which had been duly filed.

Held, that the proof was insufficient,

That it was necessary to prove the commencement of the action in which the receiver was appointed, and that the court obtained jurisdiction of the corporation, in the manner provided in section 1 of chapter 378 of the Laws of 1883, the act conferring upon the Supreme Court authority to appoint receivers of domestic corporations.

Appeal by the defendant, the Bowery National Bank, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 1st day of December, 1891, upon a recovery by the plaintiff, after a trial before the court without a jury at the New York Circuit.

J. JR. Mtm'vin, for the appellant.

W. W. Jenks, for the respondent.

The complaint alleged that, by an order of the Supreme Court, made at a Special Term thereof, held on the 16th of December, 1890, before Justice George P. Andrews, the plaintiff was duly appointed receiver of the property and effects of the I. Herman Manufacturing Company. The defendant, in answering this allegation, alleged, on information and belief, that the court in which said action was brought never acquired jurisdiction of said corporation or liad power or jurisdiction to render or make any judgment or order therein, or to make the order appointing the receiver mentioned in. said complaint, and that said order and the judgment rendered in said action were without jurisdiction and void.

p. 506

The plaintiff, to support tliis allegation of the complaint, put in evidence the order appointing the plaintiff receiver, made in the action of Walter Kenzie v. Herman Manufacturing Company, and filed December 16, 1890. We find no evidence of any action commenced in which this order was entered, or that the court by service of process ever acquired any jurisdiction over the corporation. And we think that, in the face of this denial of the answer, the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation.

By section 1 of chapter 378 of the Laws of 1883 authority is conferred upon the Supreme Court to appoint receivers of domestic corporations, and it is there provided that “ any order appointing a receiver, otherwise made, shall be void.” And it was necessary to prove the commencement of an action, and that the court obtained jurisdiction over the corporation as provided in that section of the statute before cited, to sustain the allegation that the plaintiff was duly appointed receiver.

The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide event.

Present — Yan Brunt, P. J., O’Brien and Ingraham, ,JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.