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due proof by the affidavit of C. D., verified the day of
, and hereto annexed, that notice of the hearing before me was duly given M. N., the surety, etc.].
III. That having taken the testimony of the witnesses produced before me from time to time on behalf of the plaintiff and defendants (and sureties] respectively, and having duly considered the matter, I find :]
First. That the defendants have sustained damages by reason of said injunction, in the sum of dollars, by [here state cause or nature of damage].
Second. That they have sustained no other damage.10
Third. That a reasonable allowance to the counsel for the defendants for his services upon the reference will be the sum of
dollars, besides disbursements which amount to the sum of dollars for stenographer's fees and
dollars for referee's fees. 11
All of which is respectfully submitted. [Date.] .
Referee. [For Notice of Filing, Forms of Exceptions to report, motion to confirm, and order confirming or setting aside,12 see REFERENCE.]
8 It is usually better to state conclusions of fact and law separately, as on a trial. See REFERENCE. But this is not essential to the regularity of a report on such a reference as this. Matthews v. Murchison, 14 Abb. N. C. 512, n.
9 The objection that the report in the case from which this precedent is taken did not sufficiently specify the nature or cause of the damage to the defendants, was overruled because, it well taken, it was supplied by the agreement upon the argument that
the referee's opinion should be con-
10 See paragraph 5, p. 993, supra,
11 Where no damages are found to have been suffered, the plaintiff will not be charged with the expenses of the reference. Sweet v. Mowry, 71 Hun, 381, 25 N. Y. Supp. 32.
12 The order confirming should not direct judgment for the amount. Harter v. Westcott, 11 Misc. 180, 32 N. Y. Supp. Ill; aff’d, 155 N. Y. 211.
RECEIVER" (INCLUDING MANAGER CONTINUING BUSINESS).
I. OBTAINING RECEIVER.
1. Inherent power of the court. 23. -- date; relation back.
- powers. 3. Statutory power.
- usual powers; special dires4. Property in a foreign jurisdiction.
tions. 5. Common-law and statutory receiv - corporation receivers. ers distinguished.
- assignment to receiver. 6. Powers of common-law receivers.
direction to.collect debts, 7. Sequestrator.
-- to give possession; attorn, etc. 8. Action necessary.
- to lease. 9. The practice; application to court. -- to carry on business. 10. ---- order to show cause.
to sell. 11. - when.
- suits by; express authority. - injunction.
- in other jurisdictions. - in what county.
- compromises. - three methods of moving.
37. — suits against. 15. - the complaint and aslida vits; --- distribution. rules for drawing them,
- direction for security. - notice required.
40. — saving clause as to further in- in corporation cases.
structions. 18. --- to the attorney-general. 41. Motion on pleadings for perma19. — form of notice.
nent receiver. 20. Who may be appointed.
42. Receivers of foreign corporations 21. Prudential rules for drawing order 43. Double receiverships.
appointing receiver; -- recitals. 44. Special receivers. 22. - designating property.
45. Death or resignation of receiver, [For list of Forms, see p. 1026.]
1. Inherent power of the court.] — Under the code procedure the inherent power of equity to appoint a receiver is continued except so far as expressly and positively limited.14 The New York statutels defines generally the power to appoint a receiver
before final judgment thus: [in addition to the cases specially provided for by law, such as some particular classes of corporations] “ on the application of a party who establishes an apparent right to, or interest in, the property, where it is in the possession of an adverse party, 16 and there is danger that it will be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed."17 And the statute includes the county courts with the supreme court, as having this power.
The foregoing statutory definition of the cases for a receiver is not exhaustive, and does not deprive courts, having equitable jurisdiction, of the inherent power in any case in which it may be exercised according to the course and practice of courts of equity,18
16 A party not in possession who does not disclose who is in possession, cannot defeat a motion for receiver by objecting that the property is not in possession of any party to the action. Smith v. Tiffany, 13 Hun, 671. A plaintiff in possession cannot have a receiver appointed. La Femisa 1. Arsene, 72 App. Div. 474, 76 N. Y. Supp. 576. If the “ apparent right” which plaintiff asserts rests upon a charge of fraud, which defendant positively denies, a case is not presented where the court is justified in taking the possession of the property from the defendant, though it may enjoin transfer. Congelton v. Beecher, 56 App. Div. 617, 67 N. Y. Supp. 647.
17“ Property” here includes rents, profits, income, and increase (id.), and “injury to property” does not necessarily imply impairment of the physical thing; see $ 3343, subd. 10. An "apparent right” here does not require an exclusive right to be shown. Hollenbeck v. Donnell, 94 N. Y. 342. But does require an established right. Adee v. Bigler, 81 N. Y. 349. It is necessary to show an existing danger of the kind specified in order to invoke the section. Nat. I'n. Bank v. Riger, 38 App. Div. 123, 56 N. Y. Supp. 545.
18 Hollenbeck v. Donnell, Decker v. Gardner, and other cases above cited; S. P., Barbour v. Nathl. Exch. Bank (Ohio, 1887), 12 N. E. Rep. 5, N. Y. Code Civ. Pro., $ 217; Skinner v. Maxwell, 66 No. Car. 45.
The statement in High on Recs., 3d ed., 23, that the statute excludes all unenumerated cases, is an error.
In Fellows v. Heermans, 13 Abb. Pr. (N. S.) 1 (cited with approval in Jackson v. Bunnell, 113 N. Y. 216), it was held that as the writ of injunction was abolished by the Code, and an order of injunction substituted, such an order, as a process in the action and as a provisional remedy, must find its warrant in that statute or it cannot stand. This decision has led some to think that the power to appoint a receiver has also been made purely statutory. I doubt whether such a rule would be laid down as to injunctions now, were the question still open. It does not seem to have been observed, that the abolition is expressed as of the writ, as a form, not of the power of the court, and that the same statute declares that each court “shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed by this act” (N. Y. Code Civ. Pro., $ 4) and continues chancery jurisdiction of the Supreme Court (id., $ 217); and reaffirms the ancient powers of the court to devise and make new process and forms of proceedings necessary to carry into effect the powers and jurisdiction possessed by it ($ 7, subd. 3).
But even if the power of the court to grant injunctions must be deemed purely statutory (except in the case of stay of proceedings and in the case of enjoining the conduct of, or interference with, the conduct of its officers -
but in cases where the statutory provisions are applicable and furnish an adequate remedy, the court's power is limited and must be exercised under the statute. 19
But the mere necessity of preserving property pending litigation is held not enough to enable one whose interest is not admitted or established, to move for a receiver; unless some statute authorizes it. 20
2. Agreement to submit to receivership.] — The consent of the parties does not, so far at least as third persons are concerned, gire the court power to appoint a receiver in a case not within the general rules of law and equity;21 nor even as between the parties to such an agreement, is the court controlled by a covenant that a receiver may be appointed ;22 but such a stipulation is often a sufficient ground for appointment in an otherwise doubtful case.”
where the common-law power clearly remains), the effect of the code in the power to appoint receivers is different, and the common-law power continues, as stated in the text.
19 Colwell c. Garfield Nat. Bank, 119 N. Y. 408 (an order cannot be made before and in anticipation of judgment continuing the receivership after judg. ment).
20 Adee v. Bigler, 81 N. Y. 349, holding that the provisions of N. Y. Code Civ. Pro., $ 713, allowing a receiver when plaintiff has established an "apparent” right, do not suffice to authorize a plaintiff without judgment, to maintain a creditor's action against a corporation to set aside an assignment made by it when insolvent, in contravention of the statute.
* 21 Holladay Case, 29 Fed. Rep. 126; Whelpley c. Erie Ry. Co., 6 Blatchi. 271, 274, and in Louisiana it has been decided that a receiver of partnership funds, appointed by consent of both partners pending a suit for the dissolution of the firm, is not an officer of the court, but merely an agent of the parties. Kellar v. Williams, 3 Rob. (La.) 321.
22 The fact that both complaint and answer ask a receiver, is not conclusive against defendants' objection that sufficient grounds are not shown. Dusenbury 1. Dusenbury, 2 Civ. Pro. Rep. (McCarty) 91, 11 Daly, 112.
23 In McLane r. Placerville, etc., Ry. Co., 66 Cal. 606, 6 Pac, Rep. 748, 754 (an action by the trustee in a trust deed), in disposing of the objection, that a receiver could not be appointed because the property was not in danger nor the security inadequate, the court, by Thornton, J., say: “In reply we have to say that this action is not one to foreclose a mortgage. It is a suit brought to enforce the specific execution of the terms and stipulations of a mortgage, by which, on the happening of a specific event, the trustees, or the survivor of them, are entitled to take possession of the property mortgaged, hold it, receive and collect the income and profits arising from it, and apply such income and profits as are stated above. The casus fæderis, which the surviving trustee was to take possession, having occurred, on his application the court made the order. This is so clearly within the province of a court of equits that we can see no reason to doubt its power or the regularity of the proceding. It comes within the provisions of section 564, subd. 6, of the Code of Civil Procedure, authorizing such appointments where receivers have heretofore been appointed by the usages of courts of equity. There are several cases where such a proceeding has been had, which have been sanctioned and approved by courts of the most undoubted learning and ability. See Shepley e.
So where partners have agreed that one shall take charge of liquidation, he has usually the preference in being appointed re ceiver.
3. Statutory power.] — In recent times statutes have been passed conferring power to appoint in cases that were not within the inherent power, or where that power was doubted or deemed to be inapplicable.
The most notable of these is the power conferred to appoint a receiver in actions for the dissolution of a corporation.24
Other cases are, the statute as to creditors' actions,25 and that allowing the Supreme Court having jurisdiction of an action involving the distribution of a decedent's estate, to appoint a receiver on the death of a sole surviving executor or administrator ;28 and the statute allowing a receiver in a creditor's proceedings supplementary to judgment and execution.27
Such a statute conferring on the court the power to appoint a receiver in a case not previously within its equitable cognizance, although it prescribe specifically the receiver's powers and duties, is not to be regarded as ncessarily creating a special statutory proceeding, but rather as making an addition to or extension of the general equity powers of the court.28
4. Property in a foreign jurisdiction.] — The mere fact that the property is in a foreign state is not ground for refusing to appoint a receiver, if the parties are subject to the jurisdiction.29
Atlantic & St. Lawrence R. R. Co., 55 Me. 395; Shaw v. Norfolk Co. R. R. Co., 5 Gray, 162; American Bridge Co. v. Heidelbach, 94 U. S. 798.”
24 N. Y. Code Civ. Pro., 88 1788, 1801, 1810. The power to appoint receivers of corporations, as distinguished from the power to appoint a receiver of its property, is purely statutory. Decker v. Gardner, 124 N. Y. 334.
25 N. Y. Code Čiv. Pro., § 1877. 26 N. Y. Code Civ. Pro., 8 1869. 27 N. Y. Code Civ. Pro., & 2464.
28 Palmer v. Clark, 4 Abb. N. C. 25; Ferry v. Bank of Central New York, 15 How. Pr. 445, 458.
29 Barbour v. Lockhard, 11 Wkly. Cin L. Bul. 319 (appointing receiver, between Ohio owners of mine in Nicaragua, because they were unable to agree on its working, and it was in danger).
The court say: “As all the owners are here in court, who is to prevent him (the receiver) from getting possession? It is not to be assumed that any of the parties, by themselves or their agents, will attempt to resist the order of the court. Nor is it to be assumed that the officers of the government of Nicaragua will, of their own motion, interfere to prevent possession from being taken. There is a class of cases in which it has been held that a receiver cannot be permitted to take possession of property outside the jurisdic. tion of the court appointing him - the leading one of which is Booth v. Clark (17 How., U. S. 322).