Hyperlawhypertext legal database Thau v. Bankers & Merchants Telegraph Co. 56 N.Y. Super. Ct. 588

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Thau v. Bankers & Merchants Telegraph Co.

56 N.Y. Super. Ct. 588 24 Jones & S. 588 Court N.Y. Super. Ct. Decision date 1888-05-07 English

Delivered by Held, (O’Gorman, J., writing,)

Contents

Majority

p. 588
HENRY THAU, Respondent v. THE BANKERS AND MERCHANTS TELEGRAPH COMPANY, Appellant.

Headnote

Receiver, appointed by this court in a sequestration action against a corporation, although a receiver of the property of the corporation had been previously appointed by another court.
Before Sedgwick, Ch. J., and O’Gorman, J.
Decided May 7, 1888.
Statement of the case by the Court.
On December 3, 1885, the plaintiff in this action recovered a judgment in this court against the defendant, for the sum of $2,511.82, and that judgment was duly filed and docketed on that day.
A receiver of the property of defendant corporation having been appointed by the Supreme Court, a motion was made by the plaintiff here, in that court, for permission to issue execution on his said judgment against the property of the corporation, for the purpose, as stated in his affidavit used on the motion, of enabling the plaintiff to take proceedings for sequestration of the property of the corporation, under the authority of section 1784, et seq., of the Code of Civil Procedure. On May 27, 1887, an order was made by the Supreme Court, in and for the county of New York, granting such permission, and execution was thereupon issued and returned unsatisfied.
p. 589
In June, 1887, the present suit was brought by the plaintiff, in which he prays for sequestration of the corporate property, and for the appointment of a receiver, with the usual powers and obligations, to take possession of the property and apply the proceeds to the benefit of all the creditors, as should be equitable.
On January 3,1888, an order was made in this action by this court, at special term, on motion of the plaintiff herein, for the appointment of a receiver in this action, in which order it was, among other things provided, “ that nothing therein contained would affect the right and power of any receiver theretofore appointed over any property of the defendant corporation, to act in the performance and accordance with the powers and duties conferred upon him by the order appointing him pursuant to law.”
From this order, the defendant company now appeals for various reasons, prominent among which is, that the appointment of such receiver would create a conflict with the Supreme Court.
Robert II. Griff en, attorney, and Robert G. Ingersoll, of counsel for appellant.
Robert 8. Hudspeth, attorney, and Benjamin Patterson, of counsel for respondent.

"that the appointment of the receiver in this action was within the judicial discretion of the court on the facts placed before it on the motion; that there was no reason to doubt that that discretion was not exercised properly and for good cause; and that the order, with modifications of some of its provisions which seemed to be inconsistent with the provision therein contained in relation to the Supreme Court Receiver above adverted to, should be affirmed.”

Sedgwick, Ch. J., concurred.