was issued, and levy made thereunder by the sheriff, before his said appointment. That the sheriff threatens to enforce his levy, unless the amount therefor, with poundage and costs, amounting dollars, be forthwith paid, and your petitioner is

in all to

advised to settle the same at once.

IV. [If application is ex parte:] That no application [etc., as in Form 52, p. 171].

WHEREFORE, your petitioner prays that he may be authorized to pay said judgment.

[Directions as under Form 748, and note.]

FORM No. 757.

Notice of motion by a party to the cause, for instructions to the receiver.76

[As in Form 47, p. 166, supra, to the italic clause on p. 167, concluding with statement of relief, for instance, in a partnership cause thus: for other cases see Forms below,] directing the receiver heretofore appointed in this action [here specify what directions are sought, thus] to proceed in the further discharge of his trust in disposing of the copartnership property and effects; and that he be authorized and directed to sell the entire stock-intrade of said copartnership, at private sale," to

at the

sum agreed upon, to wit [etc., etc., stating terms], and take from him his indorsed notes for one-half of the purchase-money, payable at [etc.], and for such other or further order as may be just, with costs of motion, to be paid out of the assets in the hands of said receiver.

[Date.]

[Address] To

Attorney for

[Signature and office address of]
Attorney for

[For order to show cause in lieu of notice, see Form 60, p. 179.] [For order on the decision of the motion, see Form 101, p. 259.]

should allege assets in the receiver's hands to an amount sufficient to pay all expenses of administration, and labor claims, in full. See N. Y. Labor Law, 8; Cochran v. Baker Co., 30 Misc. 48, 61 N. Y. Supp. 724.

76 May proceed by petition if preferred. See supra, p. 306. Application by a party to the cause, founded

on legal rights or equities of the case, and incidental to the ordinary course of the cause is usually made on aflidavits rather than on petition.

As to the place of moving in corporation cases, see p. 1006 (above); as to notice to the attorney-general, p. 1010.

77 Authorized by L. 1898, chap. 522.

FORM No. 758.

Petition that receiver be instructed to pay over a deposit or other fund belonging to the petitioner.78

[Title of the cause in which the receiver was appointed.79]

The petition of A. B., appearing by A. T., his attorney,

shows: *

I. That the C. Bank has been for several years prior to the day of 19, a banking corporation existing under

the laws of this State, and having its place of business at

II. That on said last mentioned day having theretofore become insolvent, it suspended its business.

III. That on the

day of

19, R. C. was duly

appointed receiver thereof in this court, and thereupon duly qualified as such, and entered on the discharge of his duties, and is now such receiver.

day of

IV. That after said bank had become insolvent and was known to its officers so to be, and immediately before such suspension, to wit, on the 19, your petitioner who was then a depositor in said bank, and was ignorant of such insolvency, deposited with it to be credited in his account [describing the fund].

[Or, That prior to the time of the failure of the said C. bank. your petitioner had sent notes belonging to your petitioner to it for collection, which were duly received by said bank, and for the

78 An action is unnecessary, unless there is a substantial dispute. See Brownr. McBean, 54 App. Div. 635, 66 N. Y. Supp. 785; Brein r. Light, 37 Misc. 771, 76 N. Y. Supp. 935, and cases cited.

May proceed by notice of motion if preferred. See supra, p. 306. Application by a third person, that may involve the trial of collateral questions is usually made by petition.

For the right of one making a deposit after insolvency and immediately before suspension, see Thompson r. Gloucester City Sav. Inst. (N. J., 1887), 6 Cent. Rep. 328; People v. City Bank of Rochester, 93 N. Y. 582, again, 96 id. 32; Craigie

t. Hadley, 99 id. 131; People v. Mechanics', etc., Sav. Inst.. 92 N. Y. 7; Butler r. Sprague, 66 N. Y. 392; Matter of True, 4 Abb. N. C. 90.

For the rules applicable to adverse claims of sheriff and receiver, see Hooley v. Gieve, 7 Abb. N. C. 271; Rich v. Loutrel, 9 Abb. Pr. 356, 18 How. Pr. 121.

As to factor and consignor, see Francklyn v. Sprague, 10 Hun, 589.

79 The application should be made in the action in which the receiver was appointed, and in the district where it is pending; so held, even where the petitioner, a senior attachment creditor, made the application in his prior action. Gillig r. Treadwell Co., 151 N. Y. 552.

collection of which said bank was to receive

as compen

sation. That said bank, as your petitioner is informed and believes, prior to said. 19 had collected a large amount of said notes so sent to it for collection, and had placed the amount so collected on its books as a fund belonging to your petitioner, separate and apart from other funds in said bank.

V. That the said deposit [or, the fund so collected, and so set apart on the books of said C. bank as belonging to your petitioner] remained there at the time of the appointment of said R. C. as receiver, and is now in the possession and under the control of said receiver.

VI. That prior to the making of this petition, your petitioner has duly demanded of said receiver that he pay said amount to your petitioner, but said receiver has failed so to do.

WHEREFORE, your petitioner asks that said receiver be directed to deliver to your petitioner the said deposit, and pay him the costs of this motion [or, to pay over to your petitioner the said sum of dollars with interest from the day

of

19

with the costs of this motion, and that the trust company pay to said receiver, out of funds belonging to said trust in its hands, the sum necessary to enable him to make such payment], or for such other or further order as to the court may seem just.

[Directions as under Form 748 and note.]

FORM No. 759.

Petition that receiver be instructed to pay administration expense, as for services, goods sold, etc., rent, etc.so

v. Stover, 16 Abb. Pr. (N. S.) 225; goods sold, Matter of U. S. Rolling Stock, 57 How. Pr. 16; rent, People r. Nat. Trust Co., 82 N. Y. 283; Moore r. Higgins, 5 N. Y. Supp. 895, 20 Wkly. Dig. 123; contracts generally, Kain v. Smith, 80 N. Y. 458. As to enforcing contracts of the receiver's predecessor, see Lehigh Coal & Nav. Co. v. Central R. R. Co. (N. J., 1886), 3 Atl. Rep. 134.

upon duly qualified and entered on the discharge of his duties, and still continues such receiver.

II. That [here allege grounds of claim as in a well drawn complaint. 181

WHEREFORE [etc., see last Form, for demand; and Form 748, and note for directions].

FORM No. 760.

Order granting leave to receiver to continue weekly pay-roll in continuance

[Title.]

of business.82

At a Special Term [etc., as in Form
No. 94, p. 255, of this volume].

A motion having been made by the temporary receiver of the above-named company for authority to make certain payments as hereinafter specified of expenses incurred by him in the conduct of the business of said company; and said motion now regu larly coming on to be heard:

Now, on reading and filing the order to show cause dated , and the petition of said temporary receiver there unto annexed, verified on said day, and on proof of the due ser vice upon the Attorney-General of the State of New York of the said order to show cause and petition and of a copy of this order proposed to be entered herein; and on motion of A. & C., attor neys for said temporary receiver, the said Attorney-General not appearing to oppose, it is

ORDERED:

I. That said temporary receiver be and he is hereby authorized to expend the sum of dollars for his weekly pay

roll for the week ending

19 .

II. That said temporary receiver be and he is hereby authorized, until the further order of the Court herein, to expend the sum of not exceeding dollars for his weekly pay-roll for

each week following the week ending

Enter:

81 The claim and the demand for relief should be stated as against him as receiver.

19 "

82 See Merc. Trust Co. r. Kings Co. Elev. R. R. Co., 40 App. Div. 141, 57 N. Y. Supp. 892.

FORM No. 761.

Order permitting receiver to withdraw a general sum for future disbursement.83

[Appropriate recitals as in previous Forms.]

ORDERED, that said receiver be and he is hereby authorized dollars from his general account Trust Company, to a special ac

to transfer the sum of as such receiver in the

count with said Trust Company, with authority to said receiver to withdraw such moneys from said special account from time to time without further order of this Court.

And the said

to pay out said sum of

Trust Company is hereby authorized dollars from said special ac

count upon the order of said receiver without further authority.

Enter:

[Initials of justice and title.]

FORM No. 762.

Petition that receiver surrender possession, pay, etc., or that petitioner have leave to be examined interesse suo. (Old practice.)84

[Entitle, and state claim, in same manner as in last two Forms.]

WHEREFORE, your petitioner asks that said receiver be directed to pay [etc., or, deliver, etc., according to the case], or that your petitioner be allowed to come in and be examined pro interesse suo as to whether his rights in and to said

are

not superior to the rights of said receiver and those whom he represents, and that at the close of said examination the court make such order as to the disposition of said

court may seem just.

as to the

And your petitioner further asks that he may have such other or further relief as may be just [together with the costs of this motion.]

[Directions as under Form 748, and note.]

83 A receiver of a corporation is required to deposit all monies in a specified trust company, except money needed for immediate disbursement. (L. 1883, chap. 378, § 3.) It was held in People v. Manhattan F. Ins. Co., 41 Misc. 611. 85 N. Y. Supp. 221,

that permission to withdraw a lump sum would be granted, leaving the receiver with discretion as to its application: the court's opinion discloses cogent reasons for adopting this practice.

84 See next Form.