at Special Term in the judicial district within which its principal business office is located.64

This does not apply to a judgment-creditor's action to remove a fraudulent obstruction to the enforcement of the lien of his judg ment on specific property as distinguished from one to sequester and distribute its assets generally for the benefit of other creditors besides the plaintiff.

In foreclosure, the order can be made only in the county where the action is triable.65

66

14. three methods of moving.] There are three methods of proceeding for the appointment of a receiver. In ordinary cases the court makes the appointment, either naming the receiver, or inserting on the settlement of the order the name of one agreed on by the parties. Another method is to refer it to a referee, to appoint and take security; and this may be a convenient method, now as well as formerly, where a reference is necessary for the purpose of examining the defendant on oath, and superintending the transfer of the assets. The third method is to refer it to a referee, to report the name of a receiver to be appointed by the court; and this is still occasionally used but only where, from the importance of the trust or peculiar circumstances of the case, an extended inquiry is desirable in making a selection.

Where the second of these methods is pursued, the appointment by the referee is effectual without an order of confirmation; but any party in interest may except to the report, or petition that the

64 For the rule applicable to motions in other actions, see supra, p. 101. It is provided by N. Y. L. 1883, chap. 378, § 1, as amended by L. 1896, chap. 282.

that

every application hereafter made for the appointment of a receiver of a corporation [meaning for the appointment of a receiver in proceedings to dissolve it, or sequestrate and distribute all its effects and not applying to foreclosure of a corporation mortgage. U. S. Trust Co. v. N. Y., West Shore, etc.. Ry. Co., 101 N. Y. 478, 35 Hun, 341], shall be made at a Special Term of the Supreme Court held in and for the judicial district in which the principal business office of the corporation is located.”

Section 9 of the same act provides in part that "all applications to the court contemplated by this act shall be made in the judicial district where the principal office of the corporation against which proceedings are taken is located." L. 1883, chap. 378, as amended by L. 1896, chap. 282.

65 Knick. Trust Co. v. Oneonta, etc., R. R. Co., 41 Misc. 204, 83 N. Y. Supp. 930.

66 Suggestion of selection by a stranger reproved. O'Mahoney v. Belmont, 62 N. Y. 133, aff'g 37 Super. Ct. 223; Id., 380.

report may be reviewed; this was held a proper practice under the Code of Procedure, 68

15. the complaint and affidavits; rules for drawing them.]— The rules stated on this subject (on pages 903 to 906) apply to motions for a receiver as well as to those for injunctions, except that there is no authority for requiring the complaint to ask the appointment of a temporary receiver." Allegations on information and belief in a verified complaint, of facts peculiarly within defendant's knowledge, when not met by denial, are established for the purpose of showing plaintiff's apparent right."

70

A prayer in the complaint for a receiver as a part of the final relief, is sufficient notice to sustain a clause for receiver in the judgment."1

The grounds for receivership other than those which form part of the cause of action, need not be alleged in the complaint, even where a permanent receivership is part of the ultimate relief sought.73

16. notice required.]—As a naked question of power, the court, unless restrained by statute, can appoint ex parte, but the power is rarely and cautiously exercised, and only in the case of an absentee defendant" or some pressing emergency." 75 As a gen

67 Matter of Eagle Iron Works, 8 Paige, 385; Bowersbank v. Collasseau, 3 Ves. 164.

68 Wetter v. Schlieper, 7 Abb. Pr. 92.

69 In Pressly v. Harrison, 102 Ind. 14, 1 N. E. Rep. 188, it is well said that a complaint is not essential.

70 See Holland Trust Co. v. Consol. Gas Co., 85 Hun, 454, 32 N. Y. Supp. 820. 71 High on Recs., 3d ed., § 114, citing Newell v. Schnull, 73 Ind. 241. 72 High on Recs., 3d ed., § 88.

Thus in an action for the dissolution of a partnership the facts which show an interest in the assets, and a right to dissolution, and an accounting and payment, must be pleaded; but the additional fact (which with these forms the ground for receivership) that the assets are in danger, need not be pleaded. Hottenstein v. Conrad, 9 Kans. 435.

73 High on Recs., 3d ed., § 83 says, it is not indispensable to the appointment either of a temporary or a permanent receiver that the bill should contain a specific prayer for a receiver, if the facts stated are sufficient to justify the appointment [citing a number of cases].

The omission of the prayer for a receiver in the complaint was, however, adverted to as material (Latimer v. Eddy, 46 Barb. 61, 66), where injunction was asked for, the effect of which would be to suspend all the powers of the officers.

74 See Form No. 687, Alford v. Berkele, 29 Hun, 633 (holding notice to nonresident partner not necessary, in action to dissolve partnership).

75 People v. Alb. and Susq. R. R. Co., 55 Barb. 344, 38 How. Pr. 228.

eral rule, notice should be given, which should be personal, but may be by order to show cause, with an injunction meanwhile.76

79

Under the New York statute" ex parte appointment before judgment, in cases within the scope of the statute,78 is forbidden, "unless the adverse party has failed to appear in the action, and the time for his appearance has expired," or unless service by publication has been ordered,80 or the mortgage in process of foreclosure contains a receiver's clause.81

The notice of motion may be served with the summons and complaint.82

Where there are several defendants, the court may act on proof of service on one defendant for himself and for a co-defendant whom he represents as authorized agent in the management of the property in question.&

The court may act on the appearance of counsel to oppose the motion, without service of notice.84

17.

in corporation cases.] — Where a receiver is appointed in an action, other than by or pursuant to a final judgment, notice

76 Devoe v. Ithaca & O. R. R. Co., 5 Paige, 521; Verplanck v. Merc. Ins. Co., 2 id. 438.

77 N. Y. Code Civ. Pro., § 714. "Adverse party" here appears to mean the party in possession. § 713, subd. 1.

78 Alford v. Berkele, 29 Hun, 633, where the court, in an action to dissolve a partnership, say: "It was always the rule of the Court of Chancery to appoint a receiver in like cases without notice to a non-resident partner. There was then, and there is now, no way to serve a notice of motion out of the State. Section 713 provides for cases in addition to cases specially provided by law. Section 1947 specially gives power to the court to appoint a receiver in cases of partnership." Hence appointment without notice to a non-resident defendant was sustained. But a receiver of a corporation may only be appointed upon notice. Section 1810, as amended by L. 1903, chap. 290.

79 See supra, p. 734, note 17.

The requirement of notice relates to the creation of the receivership, not necessarily to the appointment of a successor on the death of the first appointee. Nicholl v. Boyd, 90 N. Y. 516.

80 Fletcher v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146.

81 Code Civ. Pro., § 714, as amended in 1903.

82 High on Recs., 3d ed., § 114, expresses the opinion that formal service of process is not essential, but cites, to the contrary, Whitehead v. Wooten, 43 Miss. 523.

83 High on Recs., 3d ed., § 116, citing Mays v. Rose, Freem. (Miss.) 703; Maguire v. Allen, 1 Ball & B., 75, and see note 76 (above).

84 McLean v. Lafayette Bk., 3 McLean, 503; High on Recs., 3d ed., § 116. Whether serving an affidavit is a sufficient appearance to dispense with service of notice, see High on Recs., 3d ed., § 103, citing Vann v. Barnett, 2 Bro. C. C. 158, holding that it is.

64

of the application for appointment must be given to the proper officer of the corporation.85

If an injunction is sought, "suspending the general and ordinary business of a corporation, or of a joint-stock association, consisting of seven or more persons, or suspending from office or restraining from the performance of his duties a trustee, director or other officer thereof," personal notice of the application therefor must, under the New York statute, be given to the proper officer of the corporation or association, or to the trustee, director or other officer enjoined.87

The appearance of the corporation by attorney on an application for an injunction, a receiver and a decree dissolving the corporation, is presumed to be authorized, as is an appearance in an ordinary action; such appearance gives jurisdiction to the same extent as though it were on actual service of process.

88

18. to the attorney-general.] — Under the New York statute notice must be given to the attorney-general of all motions

85 N. Y. Code Civ. Pro., § 1810 (as amended by L. 1903, chap. 290).

86 As to what is such suspension, see Howlett v. N. Y., West Shore, etc., R. R. Co., 14 Abb. N. C. 328.

87 N. Y. Code Civ. Pro., § 1809. An injunction in violation of this is void. Id. This provision, on a view of the whole section, will be found to be of broader application than the Act of 1883, requiring notice to the attorneygeneral in actions for sequestration, or dissolution and distribution.

The vice-president of a bank, being also a director, is a proper officer on whom to serve notice of motion for a receiver. People v. Central City Bank, 53 Barb. 412, 35 How. Pr. 428.

A plaintiff who is an officer of the corporation cannot get jurisdiction by having service of summons for it made on himself. St. Louis, etc., Co. r. Sandoval Coal & Min. Co., 111 Ill. 32, 17 Chic. Leg. N. 135, and cases cited. As to proceeding when no officer can be found to be served, see Dayton t. Borst, 7 Bosw. 115, 118.

66

88 Matter of Atty.-Gen. v. Guardian Mut. Life Ins. Co., 77 N. Y. 272. 89 N. Y. L., 1883, chap. 378, § 8, is as follows: "§ 8. A copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon to the court, in every action or proceeding now pending for the dissolution of a corporation or a distribution of its assets, or which shall hereafter be commenced for such purpose, shall, in all cases, be served on the attorney-general, in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the applications but for this law would be ex parte or upon notice, and no order or judgment granted shall vary in any material respect from the relief specified in such copy or order, unless the attorney-general shall appear on the return day and have been heard in relation thereto; and any order or judgment granted in any action or proceeding aforesaid, without such service of such papers upon the attorney-general, shall be void, and no receiver of any such corporation shall pay to any person any money directed to be paid by any order or judgment made in any such action or proceeding, until the expiration of eight days after a certified copy of such

in actions or proceedings for the dissolution of a corporation or a distribution of its assets; the statute does not apply to receivers appointed in foreclosure,90 but is understood to include not only an action to dissolve a corporation or forfeit or vacate its charter,"1 but also a creditor's action which contemplates the sequestration of all its property for the benefit of all its creditors, as distinguished from an action in the nature of a creditor's action to reach for his exclusive benefit specific property upon which the creditor has acquired a lien by judgment or issue of execution giving him priority.

Such notice must be given even of motions otherwise ex parte, except that it is not necessary to serve the papers on the attorneygeneral before applying for an order to show cause.

94

92

An order is void for want of notice to the attorney-general, but may be cured by an order confirming it, made on notice to him, at least so far as to make it valid from the date of making the latter order. But notice of the application for the confirming order must be given to a receiver or other person, who, though not a party to the action, had already moved in the action for relief against the void order. 95

Notice need not be given to the attorney general of a motion to appoint an auxiliary receiver of a foreign corporation."

19. form of notice.] - The notice of motion should express shortly but clearly the object of the application, for in general the court will not extend the order beyond the notice.97

The property should be indicated, but it is enough to say "of all the property" of a defendant named; or, of the rents and profits of all his real property.

order or judgment shall have been served as aforesaid upon the attorneygeneral."

90 U. S. Trust Co. v. N. Y., W. S. & B. R. R. Co., 101 N. Y. 478, 9 Civ, Pro. Rep. 113.

91 Eustace v. N. Y. Building Loan Banking Co., 98 App. Div. 97, 90 N. Y. Supp. 784.

92 Greason v. Goodwillie Wyman Co., 22 Wkly. Dig. 560; s. c., less clearly reported on this point in 38 Hun, 138; Matter of Vanamee, 8 N. Y. Supp. 219, 29 St. Rep. 198, aff'd, 119 N. Y. 646.

93 Whitney . N. Y. & A. R. R. Co., 32 Hun, 164, 5 Civ. Pro. Rep. 118. 94 Morrison v. Menhaden Co., 37 Hun, 522. See, also, Matter of Stone Bridge, 13 N. Y. Supp. 770, 37 St. Rep. 617.

95 Whitney r. N. Y. & Atl. R. R. Co., 32 Hun, 164, 5 Civ. Pro. Rep. 118. 96 Woerishoffer r. North Riv. Constr. Co., 6 N. Y. Civ. Pro, Rep. 113.

97 Edwards on Receivers in Eq. (12th ed.) 77, 1 Grant's Ch. Pr. 144. See