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In re the Voluntary Dissolution of the Vertical Tube Boiler Co.

59 N.Y. Super. Ct. 433 27 Jones & S. 433 Court N.Y. Super. Ct. Decision date 1891-05-04 English

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p. 433
In the Matter of the Voluntary Dissolution of THE VERTICAL TUBE BOILER COMPANY.

Headnote

Receiver, his rights, powers and duties in relation to creditors who had semred a lien upon property of the company before his appointment.
Held, that.the petition and.motion of the creditors that the order of injunction in these proceedings be so modified as to allow them to enter judgment and issue executions in their actions in the city court, was properly denied.
It clearly would not have been right nor proper to allow these creditors to proceed ex parte, and without such protection to the assets as the presence and power of the receiver afford. If the attachments in the actions are valid, there is a lien upon the property levied upon in favor of the creditors in those actions. That lien will be preserved and, so far as proper, satisfied in the administration of the assets by the receiver. There is no reason for the granting of any modification of the injunction at the present time. If, hereafter, there is any improper action or delay on the part of the receiver whereby the petitioning creditors shall suffer, it will be in time for them to move for protection, etc.
Before Sedgwick, Ch. J., and McAdam J.
Decided May 4, 1891.
Appeal from order denying the motion of creditors
p. 434
who had filed a petition asking for a modification of the order of injunction and appointment of receiver.
Bullard & Shannon, for appellant.
J. C. O’Connor, Jr., for respondent.

Before the appointment of the receiver the petitioning creditors had begun actions in the city court and had obtained orders of attachment which had been levied upon property of the corporation. After the appointment of the receiver these petitioning creditors presented their petition that the order of injunction against creditors be modified so as to allow the petitioners to enter judgment and issue executions in the actions in the city court.

The motion was denied on the ground that the receiver had not been made a party-defendant or substituted for the company or defendant in those actions.

It clearly would not have been proper to allow the creditors to proceed ex parte and without such protection to the assets as the presence of the receiver' would furnish. Under all circumstances, if the attachments were valid, there was a lien upon the property levied upon which would be preserved, and, as far as proper, satisfied in the administration of the assets.

The appellant’s counsel insists that at least the injunction-order should have been modified so as to allow the entry of judgment and the issuing of execution, unless the receiver should within ten days apply to be made party-defendant to the action, etc. Such a modification was not asked of the court below. There is no reason for granting it, at least, at this time. If, hereafter, there is any improper action or delay on the part of the receiver, it will be in time to have protection from the delay.

Order affirmed with ten dollars cost.