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and of said notice and affidavit upon the defendant corporation within this State; on motion of A. B., attorney for plaintiff,
ORDERED, That M. N., Esq., be and he is hereby appointed receiver of all and singular the property assets and effects of said defendant corporation, the Company, within the State of New York; with power to collect and receive the debts, deman.ls, accounts, assets and property of said defendant corporation within this State, and to maintain any action or special proceeding for any of the said purposes; and generally to possess and exercise the usual powers and duties of receivers according to the laws of this State, and the practice of this court3 [including power to continue the business of said corporation until the further order of the court.]
F. IN PROCEEDINGS FOR VOLUNTARY DISSOLUTION.
FORM No. 729.
At a Special Term [etc., as in Form
No. 94, p. 255 of this volume]. [Court and title.]
On reading the petition of J. J. R., J. A. R., and L. J. W., dated
, 19, and duly verified, filed in this court on this day upon an application for an order to show cause under section 2423 of the Code of Civil Procedure, from which petition it appears that the above-named R. & J. Company is a domestic corporation, with its principal office and place of business in the [County of New York,] that the said petitioners are all [or, a majority] of the directors of the said company, and that it will be beneficial to the stockholders, from the facts disclosed in said petition, for the said corporation to be dissolved; And on reading the order to show cause dated
, 19 , and filed in this court upon said application, asking also for the appointment of a temporary receiver of the corporation as provided in section 2423 of the Code of Civil Procedure, with the affidavits of C. C. A. and J. J. R., verified on said day and annexed thereto, together with proof thereon of due service thereof and of the said petition herein and of a copy of this order proposed to be obtained herein upon the Attorney-General of the State of New York; and it appearing to the satisfaction of the court from said petition and affidavits, that said R. & M. Company is insolvent;t now, on motion of A. & C., attorneys for the petitioning directors, it is
3 Such a receiver may enter into an accord and satisfaction with debtors of the corporation. Goodrich r'. San derson, 36 App. Div. 546, 55 N. Y. Supp. 881.
4 A temporary receiver may only be granted where the corporation is
shown to be insolvent. Matter of Lenox Corp., 57 App. Div. 515, 68 N. Y. Sunp. 103, aff'd, without opinion, 167 N. Y. 623.
The insolvency is defined by Code Civ. Pro., § 2419. Matter of Lenox Corp., supra.
ORDERED, that J. J. R., residing in the [Borough of Brooklyn, County of Kings and State of New York,] be and he is hereby appointed temporary receiver of said corporation pursuant to seetion 2423 of the Code of Civil Procedure; that such temporary receiver immediately take possession of all the property and assets of every name and nature of said corporation, and hold and administer the same according to law; that before the said receiver takes possession of said property or enters upon the performance of his duties, he execute and file with the Clerk of the County of New York a bond to the People of the State of New York in the penal sun of
dollars conditioned for the faithful discharge of his duties as such receiver, said bond to be approved by a justice of this court.
IT IS FURTHER ORDERED, that such further application may be made to this court under the provisions of this order as the said receiver may be advised is proper and necessary for his instruc tion or direction in the management and conduct of his trust.
It is FURTHER ORDERED, that all money of the said corporation which may come into the hands of the said receiver not needed for immediate disbursement shall be forth with deposited by him in the Trust Company to his credit as such receiver, to be held by said
Trust Company subject to the further order of this court.
IT IS FURTHER ORDERED, that all creditors of said R. & M. Company be and they are hereby enjoined and restrained from beginning any action against said company for the recovery of a sum of money and from taking any further proceedings in any such action heretofore commenced."
5 Failure to recite in the order that insolvency appears is a formal defect which may be corrected nunc pro tunc. Matter of Lenox Corp., supra.
6 See note 70 to Form No. 721.
7A modification of this injunction order is void if secured without notice to the attorney-general, Dohn c. Buff. Amusement Co., 66 App. Div. 446, 73 N. Y. Supp. 95.
ties. 4. Oath.
(730) Bond of receiver.
1. Security.] — The N. Y. statute,' embodying the former practice, requires a receiver (unless a trust company),1o to give bond with at least two sufficient sureties, in a sum fixed by the court, judge, or referee making the appointment. A fidelity or surety company is equivalent to two sureties.11 The cost of such a bond is an administration expense, 12
The condition of the bond of a statutory receiver,13 and of a temporary receiver in corporation cases, should regularly extend also to duly accounting for all moneys received by him; 14 a matter which, however, is doubtless implied in the ordinary common law receiver's bond.
When a temporary receiver, who has given security, is continued as permanent receiver, the court may require a further bond, but the receiver is under no obligation to furnish additional security unless so required. 16
2. — renewing.] — When security has once been given, it is in the discretion of the court, or the judge making the order out of court, or of his successor, to at any time direct the receiver to
8 See paragraph 39, p. 1021, supra, as to direction for security, waiver, and curing defects in proceedings relating to giving security.
9 N. Y. Code Civ. Pro., & 715; S. P., Mechanics' Fire Ins. Co. case, 5 Abb. Pr. 444.
10 N. Y. Banking Law, 88 157, 158.
14 A receiver in an action to sequestrate and distribute the property of a corporation or in an action by the attorney-general in equity, or by a stockholder or creditor, to dissolve it or forfeit its franchises (religious corporations, select schools and academies incorporated by the regents or by statute and municipal and political corporations excepted), whether permanent or temporary, must qualify as prescribed by law for the qualification of a receiver on voluntary dissolution. N. Y. Code Civ. Pro., & 1788.
15 Jones v. Blun, 145 N. Y. 333.
gire a new bond with new sureties.16 The fact that a surety dies or becomes insolvent does not entitle a party to a new security, as matter of right.17
3. New bond on applicaton of surety.] — Under the statute.IS the sureties on the bond may apply upon notice to be relieved from further liability; the court must order the filing of a new bond, and in default of such filing, must revoke the appointment and direct an accounting.
4. Oath.] — An oath is not required of a receiver, unless by some statute, or rule of court.
FORM No. 730.
Bond of receiver.19 KNOW ALL MEN BY THESE PRESENTS, that we, R. C., of principal, and E. F., of [state residence], and G. H., of
state residence], sureties, are held and firmly bound unto the People of the State of New York, in the sum of dollars," lawful money of the United States of America, to be paid to the said the People of the State of New York; for which payment well and truly to be made, we and each of us bind ourselves
16 N. Y. (Code Civ. Pro., $ 715 (excepting, however, cases where other special provision is made by law, as in the case of a statutory receiver), S. P., supra,
17 Haulenbeck c. Heacock, 47 N. Y. Super Ct. 533.
As to the proper Form for drawing such bonds, see Walton o. Williams (Va. 1886), 10 Va. Law Jour. 280, and cases cited.
18 N. Y. Code Civ. Pro., $ 812.
19 See, as to bonds generally, Vol. I, p. 25. A trust company may act without giving bond. N. Y. Banking Law, $$ 157, 158.
20 The receiver must himself sign, and two sureties are necessary, under N. Y. (Code Civ. Pro., $ 715, unless a guaranty or fidelity company signs. Vol. I, p. 455. A bond with only one surety is amendable. Holmes v. McDowell, 15 Hun, 585, aff'd on this opinion in 76 N. Y. 596. See, as to curing defects, and effect of omission of security, paragraph 39, p. 1021, supra.
21 The amount is usually double the value of the property, or if the property be real estate, then double the yearly rental.
22 X receiver's bond erroneously running to the plaintiff and not to the people, is good as a common-law bond, when under it the defendant, as receiver, has obtained and administered the partnership assets. Carl e. Meyer, 51 App. Div. 4, 64 N. Y. Supp. 1077. See, as to liability of sureties when receiver's appointment was annulled, Thompson 0. Denner, 16 App. Div. 160, 44 N. Y. Supp. 723.
respectively, and our respective heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 19 . WHEREAS, by an order of the court of
bearing date the day of 19,duly made at a Special Term thereof, held on said day at , in an action wherein A. B. is plaintiff, and Y. Z. and others are defendants, [here briefly state object of the order, e. g., thus:] the above-bounden R. C. was duly appointed receiver of the partnership property and assets of said plaintiff and defendants (or thus, it was referred to R. F. to appoint a receiver of
, and to take due security from such receiver; and whereas, said referee has appointed the abovebounden R. C.):
Now the condition of this obligation is such that if the abovebcunden R. C. shall, according to the rules and practice of the court, duly file his inventory, and, annually or oftener if thereunto required, duly account for what he shall receive or have in charge as receiver in the said cause, and pay and apply what he shall receive or hare in charge as he may, from time to time, be directed by the court; and do and perform his office of receiver in all things according to the true intent and meaning of the aforesaid order:
[Or, under N. Y. Code ('iv. Pro., § 715, the following short condition is valid, unless the court require more:) that if the above-bounden R. C. shall faithfully discharge the duties of his trust as such receiver (may add, in case of a statutory receiver, or temporary receiver in corporation cases ( paragraph 1, 1089)], and shall render a just and true account of his proceedings whenever so required,23 and shall obey all orders and directions of said court;
Then this obligation shall be void, otherwise to remain in full force.
[Signatures and seals.] Sealed and delivered in the presence of
[Witness). [Acknowledgment, affidavit of sufficiency, and approval, as in Forms 252 to 258 p. 479, etc. File and record.24]
23 Smart r. Flood & Co., Chan. Div., 1983; 49 L. T. R. (N. S.) 467; Com lacnwealth r. Gould, 118 Mass. 300;
Thomson r. McGregor, 81 N. Y. 592, 9 Abb. N. C. 138.
24 N. Y. L. 1887, chap. 372, p. 107.