FORM No. 331. Order giving leave to prosecute as a poor person. At a Special Term [etc., see Form 94.] p. 255.] In the Matter of the Application of A. B., For Leave to Sue as a Poor Person. On reading and filing the annexed petition of A. B., verified the 19 [and mention other papers, if day of any], with the certificate of M. N., his counsel, dated the day of 19 and the consent of said M. N. to serve as attorney without compensation, thereto attached, and the court being satisfied of the truth of the facts alleged, and that the petitioner has a good cause of action,80 and upon motion of M. N., for the petitioner: * ORDERED, that the petitioner be admitted to prosecute the action against Y. Z. described in the said petition, as a poor person, and that said M. N., Esq., is hereby assigned to him as attorney and counsel for that purpose, who shall prosecute said action without compensation.81 [Authentication as in Form No. 108, p. 265 (above).] FORM No. 332. Order denying leave to prosecute as a poor person. [As in last Form to the *, continuing:] And it appearing that this motion has been unreasonably delayed 82 until after the cause has been at issue and noticed for trial [or, that the cause has already proceeded to a hearing, upon 80 Where the motion was opposed by affidavits tending to show that petitioner's cause of action was not a meritorious one, held, that such affidavits would not be considered. McNamara v. Nolan, 13 Misc. 76, 34 N. Y. Supp. 178. 81 Rutkowsky v. Cohen, 74 App. Div. 415, 77 N. Y. Supp. 546, 11 Anno. Cas. 255. 82 Delay is a ground for denying the petition. Sweeney v. White, 10 Misc. 29, 30 N. Y. Supp. 1051; Alexander v. Meyers, 8 Daly, 112; Ostrander v. Harper, 14 How. Pr. 16. When the application is not made until the cause has been referred and noticed for hearing, it will be denied as unreasonably delayed. Florence v. Bulkley, 1 Duer, 705. the defendant's demurrer to the petitioner's complaint, and that the demurrer has been sustained by the court]: ORDERED, that the petition be and the same is hereby denied. [Authentication as in Form No. 108, p. 265 (above).] XI. LEAVE FOR ACTION IN NATURE OF QUO WARRANTO.83 FORM No. 333. Petition by Attorney-General for leave to sue to annul a charter.84 To the Supreme Court of the State of New York. The petition of the Attorney-General of the State of New York respectfully shows: I. That the about the day of lature of this State by titled 19 company is a corporation which, on or 19, was created by the legis [or, was organized under 85] the act enand passed on the day of [state the purpose of incorporation sufficiently to show that it is not a religious, a municipal, or other political corporation,s or a corporation which the State regents may dissolve.] II. That it has not organized and commenced the transaction of its business nor undertaken the discharge of its corporate duties, although more than two years have elapsed since the time it became a corporation; on the contrary [here set forth facts substantiating this allegation, and as these facts must usually be 83 The court may, in its discretion, order the application to stand over until notice is given to the corporation or its officers that they may be heard. Code Civ. Pro., § 1799. And the corporation may employ counsel to oppose. Attorney-General r. Atl. Mut. L. Ins. Co., 2 How. Pr. (N. S.) 146; People v. The Same, 21 Wkly. Dig. 559. If there are circumstances in the case which render this notice unnecessary, they should be alleged in the affidavit; but the fact that no notice was required by the court, does not impair the validity of the order granting leave. People r. Boston, Hoosac T. & W. Ry. Co., 27 Hun, 528. For usurpation of corporate or official power, the Attorney-General may sue without leave. People ex rel. Demarest v. Fairchild, 67 N. Y. 334; People v. Boston, Hoosac T. & W. Ry. Co., 27 Hun, 528; N. Y. Code Civ. Pro., 1948. So also as to vacating letters patent. Id. 84 The dictum in People ex rel. Gould r. Mutual Union Teleg. Co., 2 Civ. Pro. Rep. (McCarty) 295, that a petition is essential, is not in accordance with what I understand to be the practice. The court certainly have the same power to act on an affidavit as on a petition. But if the application is not to be made in person, a petition is preferable. 85 The New York statute extends to corporations formed under the General Laws. N. Y. Code Civ. Pro., § 1798. 86 N. Y. Code Civ. Pro., § 1804, excepts such corporations. Compare as to municipal corporations elsewhere. State r. Tolan, 4 Vroom (N. J.), 195; Rex v. Daws, 4 Burr. 2120. stated on information and belief, attach and refer to affidavits establishing their existence.87 III. That it has thereby forfeited its privileges and franchises by failing to exercise its powers. 88 IV. That your petitioner believes that the public interests require the bringing of an action against said company to vacate its charter and forfeit its franchises;89 and he has reason to believe that the foregoing allegations can be established by proof.90 90 WHEREFORE your petitioner asks leave to bring an action in the name of the people of the State for the purpose of vacating the charter and annulling the existence of the corporation. [Date.] [Verification as in Form No. 193, p. 326.] FORM No. 334. Request to Attorney-General to sue.93 [Signature.]92 To the Attorney-General of the State of New York. You are hereby requested to bring an action against the [name of corporation], a corporation organized under the laws of the State, and having its principal place of business in the city of to vacate the charter and annul , county of the existence of said company. The grounds upon which action is requested to vacate the charter and annul the existence of said corporation, are in substance: That [stating facts concisely]. That the undersigned is a stockholder [or, creditor] of said corporation. 87 The Attorney-General should establish a prima facie case. Matter of Attorney-General, 50 Hun, 511. 88 See section 31 of the General Corporation Law (L. 1892, chap. 687), which provides that such non-user shall result in the ceasing of its corporate powers. Or, in place of these paragraphs, state in a similar way other facts constituting grounds of dissolution. See those enumerated in N. Y. Code Civ. Pro., 1798. 89 This statement should be incorporated in the petition. Matter of Attorney-General, 79 Hun, 369, 29 N. Y. Supp. 449; Id., 81 Hun, 541, 30 N. Y. Supp. 1094. 90 See cases in preceding note. 91 People v. Buffalo Stone, etc., Co., 131 N. Y. 140. 92 The Attorney-General cannot delegate the power to apply for leave. See Matter of Attorney-General, 79 Hun, 369. 29 N. Y. Supp. 449. 93 See N. Y. Code Civ. Pro., § 1786. After neglect on the part of the Attorney-General to proceed, for sixty days, the applicant may apply for leave to commence such action. The undersigned offers to furnish security satisfactory to the Attorney-General to indemnify the people of the State of New York against costs in any action or actions brought upon this application. [Date.] [Signature and address of applicant.] [Verify and annex any necessary affidavits substantiating charges.] XII. LEAVE FOR ACTIONS BY OR AGAINST RECEIVERS, COMMITTEES, OR OTHER TRUSTEES. FORM No. 335. Petition by a receiver or other trustee for leave to sue.94 [Tille of court and cause, or proceeding To the Supreme Court of the State of New The petition of A. B. respectfully shows: day of 19 at I. That on the by an order then duly made by [Mr. Justice J. K., of] the court, and entered in upon the application of M. N., in an action for, supplementary proceedings] between 94 Where the mere appointment as receiver does not invest him with power to sue, leave to sue is essential. See Foster v. Townshend, 68 N. Y. 206; Morgan v. Bucki, 30 Misc. 245, 61 N. Y. Supp. 929; Garden v. Garden, 34 Misc. 97, 69 N. Y. Supp. 481. A receiver should always obtain leave to sue. King v. Cutts, 24 Wis. 627; Battle r. Davis, 66 N. C. 252; Screven v. Clark, 48 Ga. 41; Miami Exp. Co. v. Gano, 13 Ohio 269. Under the former practice one reason why leave was required, was, that at law he must sue in the name of others, and the court would require him to indemnity such nominal plaintiffs. Green v. Winter, 1 Johns. Ch. 60. Under the Codes of Procedure (N. Y. Code Pro., § 111; N. Y. Code Civ. Pro., § 449; N. Y. L. 1832, chap. 295; and L. 1845, chap. 112) a receiver may sue in his own name. See also L. 1858, chap. 314. Another reason was that the sanction of the court was desirable in some cases in order to shield him from a personal liability for costs, in case his suit was unsuccessful. This reason is still operative. See N. Y. Code Pro., § 317; N. Y. Code Civ. Pro., § 3271; Phelps v. Cole, 3 Code Rep. 157; Smith v. Woodruff, 6 Abb. Pr. 65; Murray v. Hendrickson, Id. 96. Another reason for the rule is to prevent waste of assets in the receiver's hands by unnecessary litigation. Wetherbee v. Wetherbee, 17 App. Div. 181, 45 N. Y. Supp. 297. Therefore it is improper to give general leave to sue in an order appointing the receiver. Id. Leave to sue may be granted nunc pro tunc. De La Fleur v. Barney, 45 Misc. 515, 92 N. Y. Supp. 926. A special application is necessary to charge a receiver with the costs. Marsh v. Hussey, 4 Bosw. 614. Such application must be made on notice. First Nat. Bank v. Washburn, 20 App. Div. 518, 47 N. Y. Supp. 117. said M. N. and O. P., then pending in said court, your petitioner was duly appointed receiver of [the property of O. P.], and duly qualified as such and filed the bond directed in said order. II. [State briefly the cause or causes of action, as they would be stated in a concise complaint, and such facts as are stated on information and belief should be established by affidavits annexed and referred to.*] III. That your petitioner believes that there is due by reason of the foregoing facts from said Y. Z. [the intended defendant] to the aforesaid estate [or, fund-or, corporation—or, lunatic as the case may be] the sum of dollars [or other relief]. IV. That the petitioner has demanded payment of said Y. Z. [the intended defendant], but he refuses to pay the same [or, if it is a case of special relief of a nature to require demand, has requested the said Y. Z. to desist from such acts or, to deliver said property-but he refuses so to do]. V. That your petitioner, upon diligent inquiry, is informed and believes that said Y. Z. is solvent, and the demand is collectible from him by means of an action [or, that said mortgage is collectible in whole or in part-or, believes that the said chattels are now in the possession of said Y. Z., and may be recovered by an action of replevin- or otherwise show that an action would be successful]. VI. That your petitioner has sufficient property of said estate [or other fund], consisting of in his actual possession, to secure the said Y. Z. for any costs which he may recover against your petitioner if such proposed action be unsuccessful.95 [Or, if a receiver in supplementary proceedings] that said [creditor in whose behalf he was appointed] has presented to your petitioner the within request hereto annexed that such action be brought.9*. On motion by receiver for reference to ascertain whether it would be for the benefit of the property to empower him to sue debtors, held that the affidavit should show a reasonable prob ability of success. Dacie v. John, 1 McCleland, 575. 95 If this cannot be alleged, the petitioner should be prepared to give security. N. Y. Gen. Rule No. 78. 96 See last note. |