-- day of I. That by order made in this cause, dated on the last, your petitioner was duly appointed receiver of [briefly indicating what; or if appointment was by referee, say: it was referred to R. F., of , to appoint a receiver of briefly indicating what-and pursuant thereto the said R. F. appointed your petitioner receiver thereof.] 19, your petitioner, together with E. F. and G. H., entered into a bond to the People of the State of New York, in the sum of tioned for [state conditions as in bond]. dollars, condi III. That your petitioner has passed his accounts, down to the 19 , before R. F., the referee appointed day of for the purpose by an order of this court dated and entered the day of , 19; that said referee has reported that there then remained in your petitioner's hands, on the balance of his account, the sum of dollars, which belonged to [the defendant Y. Z.]; that said referee's report was duly filed herein on the day of , 19, and an order confirming said report was duly made and entered the day of 19 . IV. That by an order made in this cause, dated on the day of last, it was ordered that your petitioner should deliver to [the defendant Y. Z. possession of so much of testator's real estate as then remained unsold, and that he should pay to said Y. Z. the said sum of dollars, the balance remaining in your petitioner's hands as aforesaid;] and thereupon your petitioner was to be discharged from the said receivership, and might apply to this court to have the aforesaid bond cancelled. V. That [possession of said real estate then remaining unsold has been accordingly delivered to said Y. Z., and said balance of 25 Or may apply on affidavits. See supra, p. 307. 26 As to the place for applying in corporation cases, see p. 1006. As to notice to attorney-general, see p. 1010. dollars reported to be in the hands of your petitioner has also been paid to said Y. Z., pursuant to said order,] and his receipt showing such delivery and payment duly acknowledged, is hereto annexed; that your petitioner has fully performed the duties of his trust. WHEREFORE, your petitioner prays that [he may be discharged as such receiver and that] the aforesaid bond may be cancelled. [Date.] [Signature.] [Verification as in Form 193, p. 326 of this volume.] [Notice of presentation, see pp. 323, 324.] [Title of action.] FORM No. 732. Order canceling receiver's bond. At a Special Term [etc., as in Form day of 19 " Trust Com On reading [a certified copy of] the order [or, judgment] of this court, made and entered herein on and on reading and filing the affidavit [or, petition] of W. J. B., the receiver herein [and the certificates of the pany of and the vouchers annexed to and forming a part of said affidavit], and it appearing to the court by said. affidavit, [certificates and vouchers] that the receiver has in all respects complied with the provisions of the aforesaid order or judgment of this court [if on default, add, and on proof of due notice of this motion to Y. Z., and include attorney-general in corporation action if required, see paragraph 18, p. 1010,] and after hearing A. T., of counsel for and T. Z. [or, no one appearing] for attorney for said receiver, in opposition; now, on motion of A. T., ORDERED, that the bond of said W. J. B., the receiver herein, given pursuant to the order of this court on the day of 19 which was filed with the clerk of this court on the day of 19, be and the same is hereby cancelled [and said W. J. B. be and he is hereby discharged as receiver of state briefly.] Enter: [signature of judge by initials of name and title.] -In the assignment by a 1. Form and effect of assignment.] defendant in a creditor's action, it is proper to insert an excep tion of property exempt by law from execution, even if the debtor has made a sale of all his furniture, and it has been set aside as against creditors.28 An exception of property held for the defendant under a trust created by another person should be in the language of the statute, and not an exception of particular property as within the stat 27 The distinction between common law and statutory receivers is discussed in paragraphs 5 and 6, pages 1002, 1003, supra. The term "statutory receiver' in New York practice is commonly used to designate a receiver whose title vests in him by force of the statute, and without the formality of an assignment. The instances where it is advisable that the "common law," or holding, receiver should also be vested with the title to the property mainly arise in partnership accountings, and in creditors' actions to reach non-leviable assets or to remove fraudulent obstructions. See this subject of assignment to receiver, paragraph 28, page 1015, supra. A receiver appointed by a court of equity has not, without assignment or statutory investiture, any title to the assets, but is merely a custodian. Quincy, etc., R. Co. t. Humphreys, 28 Abb. N. C. (N. Y.) 332; Keeney e. Home Ins. Co., 71 N. Y. 396; Fincke v. Funke, 25 Hun, 616. A direction in the order that the defendants assign to the receiver is of no effect unless an assignment is in fact made. Fincke v. Funke, supra. 28 Sheldon v. Weeks, 7 N. Y. Leg. Obs. 57. The sixty days' earning exemp tion depends on evidence before the court or referee. N. Y. Code Civ. Pre § 1879. ute,29 unless the particular property has been ascertained by the court or a reference. An assignment by the debtor to the receiver of all his real property leaves no residuary interest in the debtor. Under the final judgment, a purchaser acquires all the interest which a debtor had in the lands at the time of his conveyance to the receiver; so that a judgment recovered against the debtor after the conveyance does not create a lien upon the lands.30 2. Compelling assignment.] The grounds of a receiver's title have already been indicated.31 The party cannot, by denying the ownership of property, escape the obligation to make a formal general assignment. 32 3. Power of court to dispense with assignment.]—It is not to be inferred, from what has been previously said,33 that an assignment is indispensable. The court is not dependent on the presence and signature of the defendant, and its power cannot be nullified by his absence or refusal. In a substantial sense the dominion and disposing power over property, under a receivership, is in the court itself. The court can transplant the title without the aid of a recalcitrant defendant. In some cases relating to specific property, this may be appropriately done by the judgment itself declaring the defendant to hold merely in trust for plaintiff, and enjoining defendant and all claiming under him from asserting title. In other cases the form of record title is preserved by the court's appointing a commissioner to convey in the name of the defendant.34 29 N. Y. Code Civ. Pro., § 1879. Otherwise, in the injunction. Rider v. Mason, 4 Sandf. Ch. 351. 30 Chautauqua Co. Bank v. White, 6 N. Y. 236; s. p., 99 N. Y. 275. As to whether the assignment can be sustained independent of the validity of the order to make it, see Rockwell v. McGovern, 69 N. Y. 294, modifying Rockwell v. Brown, 54 N. Y. 210, 11 Abb. Pr. (N. S.) 400. 31 Page 1015. 32 Booth v. Clark, 17 How. U. S. 322, 339, and cases cited; Chipman v. Sabbator, 7 Paige (N. Y.) 47. See, also, High on kecs. (3d ed.), § 446. And one who is not a party to a creditor's suit cannot object to the receiver's title, that the debtor's tenant was not served with a copy of the order appointing the receiver, or that he did not attorn to the receiver. Albany City Bank v. Schermerhorn, Clarke, 297; reversed, on the question of contempt, in 10 Paige, 263. 33 Paragraph 28, etc., p. 1015. 34 See p. 1017, note 21. In accordance with these principles, it has been held that when a receiver of real and personal property dies, after having taken an assignment, the title vests in the court, and the court can confer it on a new receiver, 'by appointing him as the suecessor of the deceased.35 FORM No. 733. Order of reference to effect transfer to receiver.36 [Title of action.] At a Special Term [etc., as in Form [Recite briefly the state of the cause, or refer to the motion paperse. g., thus:] The issues of fact in this cause having been duly tried, and it having been found by verdict [or, the decision of the judge], duly entered [filed] that [etc., indicating the ver dict or decision]. [Or thus:] On the complaint in this action, and on reading and filing the annexed proof of due service thereof, with the complaint, more than twenty days since, [and of notice of this motion] and it appearing from the affidavit of M. N., that no answer or demurrer [or appearance] has been put in, and that defendant's time to appear or plead has fully expired; and after hearing A. T., of counsel for the plaintiff, and T. Z., of counsel [or, and no one appearing] for the defendant, in opposition; now, on motion of A. T., attorney for the plaintiff: ORDERED, that it be referred to R. F., Esq., of selor at law, to examine the defendant and such witnesses as shall be produced before him, concerning the property and assets of said defendant, and report the same to the court without delay, and 35 Nicoll v. Boyd, 90 N. Y. 516. 36 Such a reference may be had in a partnership accounting; it is not necessary for the receiver to resort to an action to obtain possession of the copartnership assets in the hands of a party. Freudenthal v. Davis, 24 Wkly. Dig. (N. Y.) 48. |