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proceeding show cause before the Special Term, [Part 1,] of this court, to be held at the [County Court House in the Borough of Manhattan, county of New York,] on the
day of 19, at 10.30 o'clock in the forenoon of said day or as soon there after as counsel can be heard, why an order should not be made herein authorizing and directing the said J. J. R. as such receiver to sell the entire assets of said R. & M. Company, exclusive of outstanding accounts and demands, and including the gend will, franchises and trade-marks of said company, as an entirety. at public auction as praved for in the annexed petition, and why such further relief in the premises should not be granted upon this application as to the court may seem proper.
Service of this order, with a copy of the annexed petition on or before the day of
19 , shall be sufficient. [Date.]
[Signature.] Justice of the Supreme Court of the State of New York.
FORM No. 750.
Order giving receiver leave to sell.es [Title (court order) and recitals, as in other cases; see Form 101, p. 259, inserting facts according to circumstances, as thus:] by which it satisfactorily appears to this court that it will be for the benefit of the assigned property [remaining unsold and undisposed of] in the custody of said receiver, and the advantage of all parties in interest, that [designating articles69] should be sold at [private sale at and for the price offered therefor in cash, as particularly set forth in said petition of said R. C. [and that out of the proceeds of such sale the said chattel miort rage and incumbrances upon the said should be paid off and discharged); and further, that it is also for the benefit of said assigned property, and the advantage of all parties in interest,
that the remaining stock and property in said receiver's custody should be sold at public auction, upon the usual notice, at some time or times previous to the day of
next : Now, on motion of A. T., Esq., counsel for said receiver, it is
ORDERED, 1. That said R. C., as receiver as aforesaid, be and he is hereby authorized and empowered to sell and dispose of the said stereotype plates hereinbefore referred to, and fully described and specified in the said petition, at private sale at the best price he can obtain therefor in cash, not less than the sum of dollars.
2. That out of the proceeds of such sale said receiver be, and he hereby is, authorized and empowered to pay the principal and interest due and unpaid upon the said chattel mortgage upon said articles in the said petition specified, and to cause the same to be satisfied and discharged, retaining any balance of the proceeds of such sale in his hands as receiver, to be accounted for, and to abide the further order and direction of this court.
3. That said receiver be, and he hereby is, authorized and empowered to sell and dispose of the remaining property and assets now in his custody undisposed of, or which, at the time of sale, shall be in his custody and control undisposed of, at public auction, to the highest bidder, on due public notice thereof, and at such time or times as he shall deem most convenient and proper between now and the
next. Enter: [signature of judge by initials of name and title.]
FORM No. 751.
Order confirming receiver's sale.
[Title (court order) and recitals according to the case.]
ORDERED, that the aforesaid sale be and the same is hereby in all respects confirmed, and the said receiver is hereby authorized to convey and deliver possession to the said purchaser the following described property [insert description], and upon receiving from said purchaser the sum of dollars, the balance of sail purchase-money, the said receiver is hereby authorized to deliver to said purchaser a deed [or, assignment] of said property in the usual form.
Enter: [signature of judge by initials of name and title.]
FORM No. 752. Petition of receiver to compel purchaser to complete after contract previously
negotiated has been confirmed.70
[As in Form 730, to the *. ]
III. That among the assets of said G. B. which came to your petitioner's knowledge and possession was a judgment recovered by said G. B. against one J. H. M., in an action in the Supreme Court for the county of , on the day of 19 , for the sum of $ .
IV. [If a pre-arranged sale, here state circumstances of negotiation and contract of sale of such assets and order of court obtained granting leave to sell." If the purchase was made at publie sale, recite briefly the order authorizing the sale, and the proceedings thereunder. See Form 750.]
V. That thereafter a copy of said order was delivered to said [purchaser], with a notice that your petitioner was ready to conplete said transaction, and to assign said
to said (purchaser] upon the payment of the stipulated price.
VI. That thereafter, as your petitioner is informed and believes, said (purchaser] submitted to your petitioner's said counsel such papers as he desired executed for a complete transfer of said (naming them], and your petitioner duly executed and acknowledged the said assignment (and procured the said to be luly executed and acknowledged by M. N.] and thereupon tendered all of the same to said [purchaser], and demanded the performance of said agreement on his part, but he has hitherto failed [and refused] to perform the same.
70 This and the next Form are from Matter of Denison, 114 N. Y. 621, 22 St. Rep. 964, in which it was held, that as a receiver is simply an agent in possession for the court, his sales are judicial sales. and may be enforced by order. Such sales are made solely by reason of the power conferred upon him by his appointment. He does not act by authority of any statute, or of law, independently of the court, but because the court has taken possession of the property through its receiver as its agent or servant; that a confirmation of the contract of sale is not essential, and
it is not material whether the sale was public or private.
The court is given authority to order a private sale of corporate assets, by receiver, by L. 1898, chap. 522.
71 A receiver asking leave to sell, pursuant to a contract negotiated. should submit a copy of the contract. which may be executed in advance, being expressed to be subject to approval of the court; and thereupon the order of approval will be a con firmation of the contract and a protection for both parties.
VII. [If application is ex parte, for an order to show cause, add] That no previous application for
has been made herein [except, etc.72].
WHEREFORE, your petitioner prays for an order requiring the said fourchaser] to perform said contract on his part, and to pay to your petitioner, upon receipt of said assigninent and other papers for the transfer of the said sum of $ besides the costs of this application.
[Directions as under Form 748, and note. ]
FORM No. 753.
[Title (court order) and recitals, according to circumstances: see
Form 101, p. 259.] ORDERED, that the said [purchaser], within days from the service of a copy of this order upon him [or, on 2. T., Esq., his attorney!, perform the contract in the said petition of said receiver mentioned, and, upon receiving the assignment [if of a judgment or cause of action in suit, may add – proposed order of substitution and consent to the entry thereof), tendered to him by said receiver, on or about the
19 pay to said receiver, or to his attorneys, in performance of the said contract, the sum of dollars, besides dollars costs of this motion.
Enter: [signature of judge by initials of name and tille.]
FORM No. 754.
[As in Form 730, to the *.]
III. That he has emploved as his attorney and counsel in the above matter A. T., Esq., a counselor of this court, and that in the course of his business, as receiver, he has found it necessary to frequently, and, indeed, almost constantly consult with said counsel.
72 See pp. 116 and 171 of this volume.
73 By L. 1902, chap. 60, $ 4, as amended by L. 1904, chap. 705, the employment of more than one counsel by the receiver of a monied corpora
tion must be authorized by the court upon notice to attorney-general.
Notice to attorney-general is neces. sary in all corporation cases. See p. 1010 of this volume.
IV. That your petitioner believes it will be necessary to require much of the time of said counsel until the estate in his hands is wound-up, and that in view thereof he believes it for the interest of the estate that such employment of said attorney and counsel should be continued, and that a proper fee as retainer, and on account of his said service, should be now paid him.
V. That your petitioner is informed that this court has, in several cases of similar character, directed the payment of a fee at the commencement of proceedings of dollars.
WHEREFORE, your petitioner prays direction: 1st. As to the cnployment of legal assistance. 2d. As to the amount which shall be now paid on account of such assistance.
[Directions as under Form 748, and note.]
FORM No. 755. Order sanctioning receiver's employment of counsel. 74 [Title (court order) and recitals, according to the case ; see Form
101, p. 259 of this volume. ORDERED, 1. That the acts of said receiver in respect to the employment of attorney and counsel are hereby confirmed, and he is hereby directed to continue such employment so far as may be necessary for the proper execution of his trust. 2. That the said receiver is hereby directed now to pay
said A. T., Esq., who has been and is now acting as his counsel, as re tainer the sum of dollars, and on account of services to be rendered by him the sum of dollars, out of the moneys in said receiver's hands to the credit of the above entitled cause.
Enter: (signature of judge by initials of name and title.]
FORM No. 756. Petition by receiver for leave to pay claim entitled to priority.75 [As in Form 730, to the *.]
III. That before his appointment as receiver, a judgment was obtained against the defendant company, by E. R. S., which was
74 Not more than one counsel may be employed by a receiver, except upon leave granted by the court upon notice. Gen. Rule No. 81. L. 1904, chap. 705, amending L. 1902, chap. 60, 8 4 (as to receiver of monied corporation).
See, generally, as to allowances to receiver to pay counsel fees rendered
before, during and subsequent to the dissolution proceedings, ' Matter of Little, 47 App. Div. °22, 62 N. Y. Supp. 27.
75 Wages of employes of the grade of mechanics and laborers are enti tled to priority and may be ordered paid upon such an application; if the workman is the petitioner, be