Hardt v. Levy — 86 N.Y. Sup. Ct. 351

Majority

p. 351

William A. Hardt and Others, Plaintiffs, v. Julius Levy and Others, Defendants. Kings County Trust Company, as Receiver of Levy Bros. & Co., Appellant. Henry Winthrop Gray, Individually and Claiming to be Receiver of Levy Bros. & Co., and Others, Respondents.

Headnote

Order permitting an action to be brought against a receiver — when it will not be granted.

A court will not permit its officer, while proceeding in the discharge of a duty-imposed upon him by the court and in the manner directed by it, to be subjected to the annoyance and vexation of an action, charging that he is a trespasser while performing the commands of the court.

Appeal by the Kings County Trust Company and D. H. Joy and others, judgment creditors of Levy Bros. & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of April, 1894, vacating an order of the Supreme Court, entered in the Kings county clerk’s, office on the 22d day of August, 1891, and an order entered in the New York county clerk’s office on the 16th day of February, 1894, which granted the said trust company leave to sue, and enjoining the action of the Kings County Trust Company against Cray and others.

Jlenjamin JJ. (Jardozo, Jr., for the appellants.

George Zctbriskie, for Henry Winthrop Cray, receiver, ■respondent.

W e have already decided at this term of the court that the Special Term properly refused to vacate the order of May 21, 1891,

p. 352

which, among other things, appointed Henry "Winthrop Gray receiver, and rightly directed that the receiver should account before a referee appointed for that purpose, and take the usual action in such cases, upon full compliance with which the order directs that he shall be discharged.

If our position in that case be well taken, it follows that the court should not give consent that its officer, while proceeding in the discharge of a duty imposed upon him by the court and in the manner directed by it, should at the same time be subjected to the annoyance and vexation of an action charging that he is a trespasser while performing the commands of the court.

The order should be affirmed, with ten dollars costs and printing disbursements.

Follett, J\, concurred.

Order affirmed, with ten dollars costs and disbursements.