[If brought by creditor or stockholder under § 1785, add, after clause stating ground of complaint, and it appearing that the plaintiff is a creditor or if not a creditor, insert — is a stockholder of said defendant corporation, and has submitted to the attorney-general, a written statement of facts, verified by oath, showing grounds for an action, under the provisions of § 1785 of the Code of Civil Procedure, and that the attorney-general has omitted for sixty days after such submission to commence an action specified in said section, and that said plaintiff has applied to this court for leave to commence such an action, and has obtained such leave:] 85 And it appearing that this action, has been duly commenced by the personal service within the State of a copy of the summons and complaint herein upon said defendants; now, on reading and filing the summons and complaint herein, and said affidavit of M. N., and proof of due service of notice of this motion, and copies of all of said papers on [all of] the defendant[s], and also upon the attorney-general with a copy of this order as proposed; and an undertaking having been duly given by the plaintiff and approved by the court; and after hearing A. T., of counsel for the plaintiff, in support of this motion, and T. Z., of counsel for the defendant in opposition thereto; on motion of A. T., attorney for plaintiff, Company, and ORDERED, 1. That the defendant, the its trustees, directors, managers, officers, agents and servants be and they are hereby enjoined and restrained from collecting or receiving any debt or demand, and from paying out, or in any way transferring or delivering to any person any money, property or effects of the defendant , during the pendency of this action; except by express permission of this court. [If the action is brought to procure the dissolution of the corporation, continue thus: 2. That the said defendant company and its trustees, directors, managers, officers, its agents and servants be and they are hereby enjoined and restrained from exercising any of the corporate rights, privileges or franchises of said corporation during the pendency of this action, except by express permission of this court.] 3. That R. C., Esq., of receiver of the defendant the be and he hereby is appointed Company, its stock,87 bonds, real and personal property, franchises, contracts, things in action 85 This order can only be granted upon notice, otherwise it is void. N. Y. Code Civ. Pro., § 1809. 86 N. Y. L. 1883, chap. 378, § 8. R. R. Co., 32 Hun, 165. and effects of every kind and nature, with the usual powers and duties according to law and the practice of this court. 4. [Bond clause as in paragraph 2 and 3 in Form 721.] 5. Said receiver is hereby directed to take possession of said stock, bonds, property, franchises, contracts, claims, demands, accounts, things in action and effects of every kind and nature, to collect and receive, and hold, preserve and protect the same and the proceeds thereof, and manage and conduct the affairs of the defendant the Company until the further order of this court in the premises [with full power to maintain any action, suit or special proceeding for either or all of the said purposes without further leave].88 [For other special powers, see Forms 696, 700, 702.59 6. That the defendant the Company, its directors [or, trustees], officers, agents and servants, and all persons whomsoever having notice of this order, be and they are hereby enjoined from in any manner interfering with said receiver in the discharge of his duties as such, and from collecting any of its debts or demands, and from paying out, disposing of, or in any way transferring or delivering to any person any of the money, property or effects of the said defendant the Company, except to deliver the same to said receiver. 7. That said receiver deposit all funds of the said Company, not needed for immediate disbursement, in the Trust Company of [subject to the order of this court]." Enter: [signature of judge by initials of name and title.] D. DISSOLUTION AT SUIT OF STOCKHOLDER OR CREDITOR. 90 To the FORM No. 725. Petition of stockholder or creditor for leave to sue.91 Court of The petition of A. B., appearing by A. T., his attorney, respectfully shows: by and under the laws of the State of New York, and has its principal office for the transaction of business in the [city and] county of , in the State of ; that the objects for which said corporation is formed are day of [briefly state] 19, your petitioner III. That on the submitted to the attorney-general of this State a duly verified statement of facts, of which a copy is hereto annexed, showing grounds for an action against said corporation under § 1785 of the Code of Civil Procedure, and that the said attorney-general has omitted for sixty days thereafter to commence an action as there requested. WHEREFORE, your petitioner asks leave to commence an action for the purpose on the grounds indicated in said request. [Signature.] [Verification as in Form 193, p. 326 of this volume.] FORM No. 726. Order granting leave to stockholder or creditor to commence action for dis solution. At a Special Term [etc., as in Form In the Matter of the Application of A. B., For leave to Commence an Action for the Dissolution of the Company. It appearing from the annexed petition of A. B., a creditor [or, stockholder] of the of Company, verified the 19, that on the day of day 19, the said petitioner submitted to the attorney-general of this State a 92 Insolvency or dissolution of corporation makes no exception to the rule requiring a creditor to have judg ment. Herring . N. Y., Lake Erie & W. R. R. Co., 63 How. Pr. 497. Otherwise of a statute authorizing action by "any creditor." Matter of Pontius, 26 Hun, 232. written statement of facts, verified by oath, showing grounds for an action under § 1785 of the Code of Civil Procedure, against the Company, a corporation created by and under the laws of this State, and having its principal office at in the county of and that said corporation was formed for [state objects]; and it further appearing that the said attorneygeneral has omitted for sixty days after the said submission to commence an action specified in said § 1785 of said Code for a dissolution of said corporation; and that the aforesaid grounds constitute a prima facie case for the dissolution of said corporation. Now, on motion of N., Y. & C., attorneys for said petitioner: ORDERED, that A. B., the said petitioner, be and he is hereby granted leave to commence an action in this court against the said Company, and such other persons as he may be advised are proper parties to such action, for a dissolution of said corporation upon the grounds specified in said petition. Enter: [signature of judge by initials of name and title.] FORM No. 727. Order enjoining creditors from suing corporation pending action for sequestration or dissolution, etc.93 94 [May be inserted in order appointing receiver, Form 724.] [If made as a separate order, title (court order) and recitals will be as in other cases; see Form 101, p. 259 of this volume; adding recital of service of motion papers and form of proposed order on attorney-general, or his appearance, unless the action is by him; and if the court requires security, adding: and the plaintiff having given security as required by the court in the sum of dollars]:97 95 96 ORDERED, that all the creditors of the defendant, the 93 Sustained in Hutchinson v. N. Y. Central Mills, 2 Abb. Pr. 394. 94 Or it may be made at any stage of the action. N. Y. Code Civ. Pro., § 1806. The Supreme Court having acquired jurisdiction of proceedings for winding up the affairs of the corporation, and having appointed a receiver, has jurisdiction to stay the suit of a creditor brought to recover assets to which the receiver is entitled, in whatever court such suit may be pending. In re Atty. Gen. v. Guard Mut. Life Ins. Co., 77 N. Y. 272; s. P., Rankine v. Company [and other persons making claims against it] be and they are hereby enjoined and restrained from bringing actions against said defendant for the recovery of a sum of money, and from taking any further proceedings in such actions heretofore commenced [except that-names-may proceed to judgment in the action already brought by them, such judgment to stand as security merely, until the further order of the court, and subject to its judgment on the validity and effect thereof in this action"] [and except that — name — may proceed to judgment in the action already brought by him against the said Company, and may enforce such judgment by execution against any property attached by him in said action before the making of this order. [Title.] E. RECEIVER OF FOREIGN CORPORATION. FORM No. 728. Order appointing ancillary receiver of foreign corporation.2 At a Special Term [etc., as in Form It appearing to the satisfaction of the court by the complaint herein, and the affidavit of M. N., verified on the day of 19, that the defendant is a foreign corporation organized under the laws of the State of , that the plaintiff is a resident of this State and is a creditor of said corporation and that a general receiver of said corporation has been appointed in the said State of ; And it further appearing to the satisfaction of the court from said complaint and affidavit that property belonging to said defendant corporation is within the State of New York, and that there is danger that said property will be wasted and the rights of resident creditors impaired therein unless a receiver of such property is appointed to preserve and equitably distribute the same; Now, on reading said complaint, and on reading and filing the notice of motion for the appointment of a receiver, dated with the said affidavit of M. N. thereto annexed, and on proof of the due personal service of the summons and complaint 98 See N. Y. Code Civ. Pro., § 1806. 99 See Galwey r. U. S. Steam Sug. Ref. Co.. 13 Abb. Pr. 211, 21 How. Pr. 313, aff'd, 36 Barb. 256. 1 See Woerishoffer v. North River Constr. Co., 99 N. Y. 398, 2 N. E. 2 See paragraph 42, p. 1023, supra, and cases cited. |