Hyperlawhypertext legal databasebeta Fleischauer v. Dittenhoefer 49 N.Y. Super. Ct. 311

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Fleischauer v. Dittenhoefer

49 N.Y. Super. Ct. 311 17 Jones & S. 311 Court N.Y. Super. Ct. Decision date 1883-06-02 English

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p. 311
JACOB FLEISCHAUER, Respondent, v. ABRAM J. DITTENHOEFER, as Receiver, &c., Appellant.

Headnote

Receiver—Action against temporary receiver of corporation.
A cause of action against a corporation for a breach of contract accruing prior to the appointment of a receiver pendente lite, in an action to dissolve said corporation, cannot be enforced against the receiver until the corporation is adjudged dissolved, and the order permitting such a receiver so to be sued is not an adjudication as to bis liability.
Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
Decided June 2, 1883.
This is an appeal from a judgment in favor of plaintiff, entered upon the report of a referee, and also from the order of reference.
The action was brought to recover damages for breach of a contract entered into, February 12, 1881, between the plaintiffs and the Economy Packing Company, a corporation organized under the act of February 17,1848. Subsequent to the breach of the contract, in an action brought to dissolve said corporation, the defendant was duly appointed receiver of the property and effects of said corporation.
p. 312
It does not appear that the corporation has ever been dissolved.
A motion to dismiss the complaint on the following ground, among others, was made and denied : ‘ ‘ That the receiver is not liable, being only temporary receiver; and. the company not being dissolved, action must be commenced against it.”
A. A. Cauldwell, for appellant.
Albertus Perry, for respondent.

—The plaintiffs have no cause of action against the defendant as receiver of the property and effects of the corporation. The corporation was not dissolved, and a suit, against it could proceed to judgment (Knauer v. Globe Mutual Life Ins. Co., 46 Super. Ct. 370).

The plaintiffs were authorized by the court that appointed the defendant receiver to commence this action. This was’not a determination that the plaintiffs had a good cause of action against the defendant as receiver. The court, in granting leave to sue, was not called to, and did not pass upon the question of the receiver’s liability.

The judgment and order are reversed, with costs, and the complaint dismissed, with costs. The order appealed from is affirmed, with $10 costs.