« PreviousContinue »
(763) Order that purchaser from re
ceiver complete his pur
chase. (754) Petition of receiver for au
thority to pay counsel fees,
etc. (755) Order sanctioning receiver's
employment of counsel. (756) Petition by receiver for leave
to pay claims entitled to
priority. (757) Notice of motion by a party
to the cause, for instruc
tions to the receiver.
structed to pay over a de-
ing to the petitioner.
to pay administration ex-
sold, etc., rent, etc.
ceiver to continue weekly
(761) Order permitting receiver to
withdraw general sum
for future disbursement. (762) - receiver surrender pos
session, pay, etc., or that petitioner have leave to be examined interesse suo.
(Old practice.) (763) Another Form,- by asking
reference. (Under Code
practice.) (764) Order to show cause why re
ceiver should not pay or deliver, etc., with stay mean
while. (765) on petition or motion that
receiver pay, deliver, sell,
etc. (766) Notice of receiver's petition
for directions as to sale of
doubtful assets. (767) Order that receiver in fore
closure, pay over surplus to himself as mortgagee.
1. Power of the court.] -- The court has power to protect the receiver in his possession and title, and to require all adverse claims to be submitted to its own determination, and to enjoin all proceedings against the fund, or against him in such form that the result could affect the fund, if brought without its leave. 62
2. Applying for instructions.] — Under the Code procedure, application to the court to instruct the receiver in reference to his duties may be made, at any time, by the receiver, 53 or by a party to the action, or by any third person interested in the property or aggrieved by the course of the receiver. The application must, of course, be made to the court making the appointment.54 The court has power to hear such applications when made by notice of motion or order to show cause founded on affidavits; but it is the better practice, when any substantial question collateral to the cause is involved, to apply by petition, and take a
52 See ITalling r. Miller, 108 N. Y. 173; Woerishoffer v. North River Const. (0., 99 id. 398. Receivers in United States courts are an exception under the Act of 1887-1888; see supra, p. 763.
53 People 1. St. Nicholas Bank, 76 Hun, 522, 28 N. Y. Supp. 114.
reference, if the application is contested, for in this mode full proofs can be had, and the resulting decision may be deemed rés judicata, 56 while an order made on affidavits is not 57 But the court has power, in its discretion, to refer a motion made on affidavits, 58 and where it does so, the same result as to conclusiveness may be reached.
3. Examination of third person, interesse suo.] – Under the old practice, although any person getting leave to sue the receiver could bring ejectment or replevin to try the title, or an action for damages, yet, as long as parties were incompetent as witnesses, it was still often necessary to come into chancery again to discover evidence. In order to give a more convenient and direct remedy, and at the same time better preserve the protertion due to the receiver, the Court of Chancery adopted the method of allowing, or in some cases requiring, an adverse claimant to come in and be examined, on his own behalf, before a Master in Chancery in support of his claim against the receiver, and he was thus allowed at once to use his own testimony on the examination interesse suo, and to afford a basis for further examination upon interrogatories drawn up on behalf of the re ceiver. Whether this course should be taken, or leave be given to sue, rested in the discretion of the court.
Under the Code procedure, since parties are now competent as witnesses, there is no reason why they should not be left to sue. except the greater simplicity and directness of proceeding by petition, or motion and a reference if necessary. Hence, instead of asking leave to be examined interesse suo, the present practice is to ask that the receiver be instructed to deliver tha property or pay the claim, or, if this be refused, that the applicant have leave to sue, and take a reference on the petition.
56 Fallon r. Edgbert Woolen Mills Co., 31 Misc. 523, 64 N. Y. Supp. 466.
57 See supra, pp. 149, 307. Where there appeared to be a substantial controversy between adverse claimants, and the receiver was a mere custodian, the court refused to determine the matter on petition. Brown 1. McBean, 54 App. Div. 635, 66 N. Y. Supp. 785.
68 Supra, p. 155.
FORM No. 746.
Notice by receiver to creditors and debtors of the corporation, announcing
appointment, and requiring presentation of claims, etc.59 [Title of court and cause.]
TO ALL WHOM IT MAY CONCERN.
Notice is hereby given, that I have been appointed by the Supreme Court of the State of New York, in this action (proceeding], receiver of the Company, and of all the property and effects of said corporation, and that I have duly qualified as such receiver; and I do hereby require —
1. All persons indebted to said corporation to render an account to me, at my office, No. , street, in the city of
, and county of , in said State, by the day of , 19 , of all debts and sums of money owing by them respectively, and to pay the same to me.
2. All persons having in their possession any property or effects of such corporation, to deliver the same to me by the said
day of , 19. 3. All the creditors of said corporation to deliver their respective accounts and demands to me by the said day of 19 .80
4. All persons holding any open or subsisting contract of said corporation, to present the same, in writing and in detail, to me, at the place aforesaid, on or before the said day of 19 .61 [Date.]
[Signature of], (Name and office address of ],
Receiver. 62 Attorney for Receiver.
59 Necessary only for a permanent receiver of corporation assets. A temporary receiver is not required to give this notice. See Matter of Simonds Mfg. Co., 39 App. Div. 576, 57 N. Y. Supp. 776.
Under 2 N. Y. R. S. 469, 8 70, pub. lish three weeks. The section re. quires publication in a newspaper in the county and also in the State paper. The requirement as to the State paper has been superseded, and the second paper must be published in the county of the receiver's residence. Executive Law, $ 74.
60 Not less than forty days from the day of the first publication.
The foregoing clauses of this notice are required by 2 N. Y. R. S. 42, § 8, which is made applicable to receivers in actions for dissolution or distribution, or to forfeit charter, etc., by N. Y. Code Civ. Pro., $ 1788.
A mere temporary receiver is not required to give such a notice. Nealis v. Am. Tube & Iron Co., 76 Hun, 220, 27 N. Y. Supp. 733, aff'd, 150 N. Y. 42; Herring 1. N. Y., Lake Erie & W. R. R. Co., 105 N. Y. 340, 19 Abb. N. C. 340.
61 This clause is required by 2 N. Y. R. S. 469, $ 70.
62 A notice which did not contain the name of the receiver, and was not
FORM No. 747.
At a Special Term (etc., as in Form
No. 94, p. 255 of this volume.] [Title of the cause.]
On reading and filing the [affidavits of A. B., plaintiff in the above entitled action, and R. C., receiver of the Company] veritied the day of
; and on motion of of counsel for said
ORDERED, 1. That a notice be published, as hereinafter directed, requiring all the creditors of said Company, and all persons having claims of any kind against said Company, to exhibit their claims to said receiver, at a place to be specified in such notice, and become parties to the above entitled suit [or, proceeding] within six months from the first publication of this order, and that in default thereof they be precluded from all benefit of the order or judgment which may be made in such suit [or, proceeding), and from any distribution which shall be made under such order or judgment. 64
2. That this order he published once a week for three weeks and said notien be published once a week for six months, in two newspapers published in the county of , to wit: the and the
Enter: [signature of judge by initials of name and title.]
FORM No. 748.
Receiver's petition for leave to sell.65
[As in Form 730, to the *.]
III. That it appears that the defendant is owner of certain real property known and described as follows: [description of the
signed, was held a nullity in Matter
N. Y. Code Civ. Pro., 8 1807.
64 If the statute is peremptory, claims delayed are wholly barred. Matter of Harmony F. Ing. Co., 45 N. Y. 310, aff's 9 Abb. (V. S.) 347; People v. Security L. Ins. & Ann. Co., 78 V. Y. 114. But under N. Y. Code Civ. Pro., 8 1907, as amended by L. 1886, chap. 372, they may be
presented before order for final distribution, with excuse of absence of knowledge.
In the absence of statutes, the court has a discretion to let in before actual distribution.
Atty.-Gen. r. Atlantic Mut. L. Ins. Co., 11 Abb. N. C. 139, rey'd in 96 N. Y. 49; Matter of Howard, 9 Wall. 175. See also, People t. Security L. Ins. Co.. 79 N. Y. 267.
65 It is improper to direct a sale by a receiver of assets, the title to
premises, and state also what interest the defendant has in it, what incumbrances there are upon it, and its value.]
IV. [Stale reasons for asking a sale, for example, in creditor's suit, thus:] That your petitioner has found no goods, or chattels, or choses in action of the said Y. Z., out of which any money can be made by collection, suit or sale; and the said land is the only available property.
WHEREFORE, your petitioner asks an order, allowing him as such receiver, to sell by public auction,66 and convey, all the right, title, and interest of the said Y. Z. [which he had on the day of
, 19 ] in and to said premises; and that the said Y. Z. join in such deed if the purchaser require it, and for such other or further order as may be just [and for the costs of this application].
[Signature of], [Jurat.]
Receiver. [Verification as in Form 193, p. 326 of this volume. Notice of motion or order to show cause,67 see supra, pp. 327, 328, and Form 757 (below).]
[Order; see Form 750.]
FORM No. 749. Order to show cause why receiver should not sell assets as an entirety. [Title of court and cause.]
Upon the annexed petition of J. J. R., receiver of the R. & M. Co., verified , 19, and upon the petition and schedules filed herein on , 19, and the final order entered herein
, 19 , and upon all other papers and proceedings herein,
Let the Attorney-General of the State of New York and the attorneys for the respective parties who have appeared in this
which is in dispute, and which are not of a perishable nature. See Brush v. Jay, 113 N. Y. 482.
For a petition for leave to sell desperate debts and doubtful claims, see Edw. on Rec., 152.
06 The court may properly authorize a private sale. Matter of Denison, 114 N. Y. 621, 22 St. Rep. 964. In the case of receivers of corpora tions, the power is expressly conferred upon the court by L. 1898, chap. 522.
67 As to place of moving, see Rinn v. Astor F. Ins. Co., 59 N. Y. 143, and p. 1006 (abore).
As to required notice to attorneygeneral in corporation cases, p. 1010 (above). Failure to serve the attorney-general was held to be cured by directing a re-entry of the order of sale nunc pro tunc. Johnson v. Ray. ner, 25 App. Div. 598, 49 N. Y. Supp. 959.