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FORM No. 741. Affidavit on behalf of receiver to obtain delivery of books and papers,45 [Title of court and cause.]
R. C., being duly sworn, says:
[I and II as in Form 730, but substituting“ deponent" for “ your petitioner.”]
III. That in and by said order the said defendant corporatior, its directors, officers, agents and servants are enjoined from interfering in any manner with said receiver in the discharge of his duty, and from hindering and impeding him in any wise, and from retaining any of the property of the defendant corporation, or disposing of the same, except to deliver it to deponent as such receiver.
IV. That he has received a portion of the books and property of the defendant from its president R. C. D., in whose charge and possession said property was; but in addition to the property delivered to deponent, said B. still holds [here describe books and papers sought].
V. That deponent has been a director and the treasurer of de fendant, and has frequently inspected said books, letters and papers, as has also said W. M., the secretary of said defendant, as appears from his affidavit hereto annexed; and that deponent knows that all said books and papers are the property of and necessary to the conduct of the business of defendant, and necessary for deponent as receiver, to thoroughly inform him as to his rights, duties and authority as receiver as aforesaid, and to the conduct of his duties in preparing his statements and collecting the property and assets of the defendant. That deponent has made repeated demands for said books and papers from said D., president of defendant, but that said D. has refused and still refuses to deliver the same, or to allow deponent to inspect or examine them.
VI. That, as he is informed and believes, the said R. C. D. has been and is representing himself to the fertilizer trade and to the debtors and creditors of and those doing business with the de fendant as its “successor” in business; and that such statements and representations are calculated materially to hinder and inpede deponent in transacting the business of the receivership of
45 Notice of motion, or order to show cause, may be adapted from Forms 47, 60. As to place of appli
cation in corporation case, see p. 1006. As to notice to attorney-general, see p. 1010.
defendant, and are contrary to the terms of said order of appointment and to the existing facts.
VII. That deponent desires an order to show cause herein for the reason that any delay suffered by him in winding up the business of said defendant and collecting its property and assets is attended with a further depreciation of the same, defendant being hopelessly insolvent, and with a greater loss to its creditors. That defendant has failed to answer the complaint herein and is in de fault therefor. That no previous application has been made to any court or judge for this or a like order. [Jurat.]
FORM No. 742.
Petition by corporation receiver for order compelling discovery of concealed
assets.46 [The petition may be readily adapted from the preceding Forn; the statute merely requires the receiver to show that he has good reason to believe that the person withholds or has disposed of corporate property. The order for the examination is granted by the court, and with or without notice.]47
FORM No. 743.
Affidavit for motion to compel tenants to pay.49 [Title of court and cause.]
R. C., being duly sworn, says:
19 it was ordered that the several tenants of the lands and premises in the pleadings mentioned should pay their rents and arrears of rents to this deponent as receiver in this cause, as also their rents accruing therewith from time to time as the same should become due and payable.
46 Under L. 1898, chap. 534. An order, directing the person named to appear for examination, with an injunction against disposing of the cor. poration's property, has been substituted for the former practice of issuing a warrant for the apprehension and production of such person charged with having corporate assets. The former practice is examined in Mat.
ter of Stonebridge, 57 Hun, 441, 10 N. Y. Supp. 727.
47 The attorney-general should have notice. Matter of Vanamee, 55 Hun, 606, 8 N. Y. Supp. 219, aff’d, 119 N. Y. 646.
45 May proceed by petition if preferred. As to place of application in corporation cases, see p. 1006. As to notice to attorney-general, see p. 1010.
II. That the several persons whose names are set forth in the schedule annexed to this affidavit, and who are respectively tenants of said lands and premises, as deponent believes, have paid rent to deponent [or, to , the late receiver in this cause after his appointment, as deponent believes — or, as appears by the said late receiver's account, filed the day of in the office of
] since his appointment as receiver in this cause.
III. That the several tenants in said schedule named owe re spectively according to this deponent's knowledge and belief, up to the respective rent days specified in the said schedule, the sereral sums as set forth in said schedule, for rent and arrears of rent of their respective holdings, which sums, or any part thereof, the said tenants so respectively owing the same or any of them, have not paid to deponent, although repeatedly applied to for that purpose. [Jurat.]
[Signature.] [Annex schedule.]
FORM No. 744. Affidavit to obtain order staying other actions affecting assets. [Title of action in which receiver was appointed.] [Venue.]
A. T., being duly sworn, says:
I. That he is the plaintiff's attorney herein.
II. That this action was brought for the appointment of a re ceiver of all the property and assets of the N. R. C. Co. in this State of
[ancillary to the appointment of a receiver of said company in the State of
III. That on the day of
19 , this court duls made an order at a Special Term thereof, appointing A. G. rë ceiver of all the property and assets of the said company, within this State (with all the powers vested in him as receiver by the Court of of the State of
], and that in and by said order the officers and directors of the defendant were enjoined from exercising within this State of
any of the privileges or franchises granted to the said corporation.
IV. That thereafter the said receiver duly qualified as required by law, and duly entered into possession of all the property of the said company, including its books, papers and vouchers, and is still in possession thereof.
V. That a number of actions have been commenced against the said N. R. C. Co. in various parts of this State since the appointment of said receiver, and attachments in some cases have been levied upon its property.
VI. That the said company is unable to defend said actions or any actions for the following reasons:
First. That all the books, papers and vouchers of the said company are in the hands of the receiver, and are being actually used in making up the statement of said receiver.
Second. Its officers and agents are restrained and enjoined by said order from exercising privileges or franchises granted to the said corporation, and they are therefore restrained and enjoined from carrying on their defense to any of said actions.
[VII. Deponent further says, that in a proceeding under the Insolvent Act of the State of
, a receiver has been dulv appointed by the Court of of the State of , of the property of the N. R. C. Co., being the same receiver appointedin this State, and to which receivership the appointment in this State is ancillary.]
VIII. Deponent further says, that great embarrassment is likely to ensue to the receivership and to the trust property by reason of the pendency of said actions. That the plaintiffs in said actions threaten to enter judgments with costs, and that the expenses will thereby be increased; that all the property of the N. R. C. Co. being in the hands of the court, it is just and eqni. table that all persons having claims against said company should be required to file their claims in court according to the practice in such case made and provided.
[If an order to show cause is asked] IX. That no previous application for an order restraining such actions has been made herein [except, etc. See supra, p. 171). [Jurat.]
[Signature.] [Notice of motion, or order to show cause, see pp. 166 and 179 of
cases, see p. 1006. As to notice to attorney-general, p. 1010.
49 Or may proceed by petition if preferred. See volume I, p. 307. As to place of applying in corporation
FORM No. 745. Order forbidding any interference by suit against receiver, etc., except to
enforce pre-existing liens.50
At a Special Term [etc., as in Form
No. 94, p. 255 of this volume.] [Title of action in which receiver was appointed.]
[After recitals according to the circumstances:]
ORDERED, that all persons be and they hereby are enjoined and restrained from bringing or further prosecuting any suits or proceedings for the recovery of a sum of money only against the de fendant the N. R. C. Co., or in any manner interfering with the assets of said defendant until the further order of this court, [except that nothing herein contained shall prevent, enjoin or affect the prosecution to judgment of the action heretofore brought in this court by the said A. and R. I. and S. Co., or the said A. and R. I. and S. Co. from collecting or enforcing any judgment obtained in the aforesaid action against any property of the said N. R. C. ('o. which may have been levied upon by virtue of an attachment before the appointment of the said A. G., as receiver, by the order of this court in this action dated
19. Enter: [signature of judge, by initials of name and title.)
SECTION IV. The RECEIVER'S DUTIES; INSTRUCTIONS; AND EXAMINATION OF ADVERSE
CLAIMS (INTERESSE Sto).51 1. Power of the court.
(748) Receiver's petition for leare 2. Applying for instructions.
to sell. 3. Examination of third persons, in (749) Order to show cause why re teresse suo.
ceiver should not sell assets Forms.
as an entirety. (746) Notice by receiver to cred (750) Order giving receiver leave to itors and debtors of the cor
sell. poration, announcing ap (751) confirming receiver's sale. pointment, and requiring (752) Petition of receiver to compel presentation of claims, etc.
purchaser to complete, after (747) Order that creditors of corpo
contract previously negoration exhibit claims.
tiated has been confirmed.
50 Sustained by Woerishoffer t. North River Constr. Co., 99 N. Y. 398, 2 N. E. Rep. 47. See, also, Phonix Foundry. The Same, 33 Hun, 156, and N. Y. Code Civ. Pro., $ 1810.
This is not an injunction within the provisions of law restricting the granting of injunctions. As to place of moving in corporation cases, see p. 1006. As to notice to attorneygeneral, p. 1010.
51 See extensive note on these subjects, reviewing many cases, in 19 Abb. N. C. (N. Y.) 359.