In re Platt — 41 N.Y. Super. Ct. 513

Majority

p. 513

In the Matter of the Application of JOHN H. PLATT, as Assignee in Bankruptcy, &c., to sue HENRY L. PIERSON, Jr., a Receiver Appointed by this Court.

Special Term,

March, 1877.

Per Freedman, J.

Headnote

ASSIGNEE IN BANKRUPTOT. RECEIVER IN STATE COURT.

I. RECEIVER. ACTION AGAINST.

1. Permission to bring must be obtained from the court appointing the receiver.

3. Tribunal in which suit must be brought.

(«) Only in the court by which he was appointed.

1. Unless circumstances render it advisable that the action should be brought in another court.

1. This rests in the discretion of the court granting leave to sue.

M ASSIGNEE IN BANKRUPTCY.

1. Receiver, suit against bt such assignee.

1. Above principles apply.

(a) United States courts, leave to sue in, what not a reason for granting, but on the contrary, a reason for denying.

1. The fact that the United States courts admiinister the law relating to the cause of action for which the suit is to he brought, differently from the courts of the State, by one of which the receiver was appointed, is a reason not for granting, but for denying leave to sue therein.

(a) Especially where the jurisdiction of the United States courts is to be invoked, for the purpose of nullifying the conclusions as to which the appointing court has arrived.

This was a motion to vacate an ex parte order obtained by an assignee in bankruptcy, giving him leave to sue a receiver appointed by this court,

This court having undertaken to determine who is the proper party to distribute the estate assigned, pursuant to the laws of this State, by the debtors for the benefit of their creditors, and having by its receiver possession of the fund, and thus full jurisdiction over it, it is perfectly competent to decide all questions relating to its distribution.

As a general rule, leave will not be granted by this court to sue a receiver appointed by its authority in any other tribunal. It is only when special facts and circumstances are shown to exist, which render a departure from the regular course and practice of the court advisable, that such leave is given.

But in the present case, I fail to perceive that such special facts and circumstances exist. On the contrary, strong reasons have been advanced why such leave should be withheld.

Assignments like the one in question have been held by the highest court in this State to be perfectly valid and unassailable under the bankrupt act, while the federal courts in this district have reached a different-conclusion. The power to review these decisions, which is vested in the supreme court of the United States, does not abate the authority of the court of last resort in the State over its inferior tribunals, and hence, until this' conflict is finally determined by the supreme court of the United States, L must abide by the law as settled in this State.

This being so, this court should not grant leave to have its own officer sued in a tribunal which is known to administer the law in a way different from that which this court is bound-to observe, and whose jurisdiction is invoked for the purpose of nullifying the conclusions at which this court has arrived.

Nor does the use which the assignee in bankruptcy made of the ex parte order granting such leave, entitle him to a favorable consideration, for he did not

p. 515

sue the receiver as an officer lawfully appointed by this court, and having the lawful custody of the fund, but as an individual having in his possession certain property, the title to which is alleged to be in such assignee. If that were the true position of affairs, the leave of this court is wholly unnecessary.

The order heretofore granted ex parte should be vacated and set aside, but the assignee in bankruptcy may have-leave to bring such action in this court as he may be advised.