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Hoftailing agt. Teal.
Amar HOFTAILING by Philip Finger, her next friend, agt.
Before the Code, an infant plaintiff gued by a next friend, and an infant defend
ant appeared by guardian ; but the Code now requires a guardian in both
cases. Although the change may be in name merely, it is irregular for an infant plain
tiff to sue by a next friend instead of a guardian.
Albany Special Term, March, 1855. Motion to set aside summons, &c.
The plaintiff, being an infant, presented a petition to one of the justices of the supreme court, praying for the appointment of a next friend to commence this action.
In pursuance of the prayer of the petition, an order was made appointing Philip H. Finger such next friend. The suit having been commenced, the defendant moved to set aside the summons and complaint, on the ground that an infant cannot sue by a next friend.
J. H. Reynolds, for plaintiff.
Harris, Justice. Under the former practice, an infant plaintiff sued by a next friend, and the infant defendant appeared by a guardian. But the Code requires that an infant party, whether plaintiff or defendant, should appear by guardian. This change the plaintiff's attorney has, inadvertently, failed to notice. It is true, as was said upon the argument of the motion, that the difference is but in name. And yet the legislature has seen fit to declare, that the person by whom an infant plaintiff shall be permitted to sue, shall be a guardian. To commence an action in any other way is an irregularity. It is
Weeks and others agt. Noxon.
by no means certain that the next friend in this case would be liable as a guardian. I am inclined to think he would not. But, at any rate, the defendant was not bound to take the risk of such a question.
Though I do it with some reluctance, I am constrained to grant the motion, with costs.
John WEEKS and others agt. ALFRED Noxon.
Service of a summons, with or without an order of arrest, on an election day,
and all proceedings under it, are void. (See Sess. Laws 1842, p. 109.)
New-York Special Term, January, 1855.
H. D. TOWNSEND, for plaintiffs.
CLERKE, Justice. With regard to the service of civil process on election day, until 1842 the words of the statute were, that "no civil process shall be served, &c., on either of the days during which such election shall be held;" but in 1842, (Laws of 1842, p. 109,) it was amended so as to read “no declaration by which a suit shall be commenced, or any civil process, or proceeding in the nature of civil process, shall be served," &c.
The case of Wheeler agt. Bartlett, (1 Ed. Ch. R.) to which the counsel for the plaintiff refers, was decided many years before the amendment. In that case the vice-chancellor says, " that the section (as it then stood) has reference to process which causes duress.” I doubt whether that section admitted of so limited an interpretation. In using so comprehensive a
Corning and others agt. The Mohawk Valley Insurance Co.
term as “process," it may be well supposed that the legislature wished to provide, not only against arrest, or duress, but against any molestation that might interfere with the elector in performing the high and sacred duty which the elective franchise imposes. However this may be, the amendment of 1812 sets the question at rest.
Commencing a suit by declaration caused no duress, and was equivalent to the present mode of commencing an action by summons, when there is no order of arrest.
The present case comes within the meaning of the amended section; and, as the summons was served on an elector, on a day when an election was held, the process, and all the proceedings under it, were void.
It is unnecessary to consider the other question.
Judgment and subsequent proceedings set aside, with $10 costs of motion.
Erastus CORNING and others agt. The MOHAWK VALLEY IN.
The proper remedy to obtain the sequestration of the property and effects of a corporation, and the appointment of a receiver, is by the summary proceedings in equity, provided by the Revised Stitutes. (2 R. S. 463.) That is, by petition, on judgment and return of execution unsatisfied. Although, no doubt, a new action under the Code, for thai purpose, might be available.
Albany Special Term, March, 1855.
The plaintiffs, having recovered several judgments against the defendants, upon which executions had been issued and returned unsatisfied, brought this action to obtain a sequestration of the stock, property, things in action, and effects of the de
Corning and others agt. The Mohawk Valley Insurance Co . fendants, and to have a receiver of the same appointed. By an order, made at a former term of the court, the defendants were required to show cause why the relief demanded by the plaintiffs should not be granted.
Upon this moțion it appeared that, before the commencement of this action, Samuel Belding, jr., had also recovered a judgment against the defendants, and that an execution issued upon such judgment had been returned unsatisfied, and that thereupon a petition had been presented to the court pursuant to the 36th section of the article of the Revised Statutes.relating to proceedings against corporations in equity; and such proceedings were had thereon, that an order was made, on the 15th day of January, 1855, declaring a sequestration of the stock, property, things in action, and effects of the defendants, and directing a reference to appoint a receiver of the same; and that, on the 22d day of January, George Bell was appointed such receiver.
W. L. LEARNED, for plaintiffs.
HARRIS, Justice. It is not denied that, but for the provisions of the Code, the proceedings for the sequestration of the property and effects of the defendants, and the appointment of a receiver, would have been regular and effectual, to vest such property and effects in the receiver. But it is insisted that, since the adoption of the Code, such sequestration can only be had in an action prosecuted for that purpose. In this view I cannot concur. An action commenced for this purpose might, no doubt, be made effectual. A sequestration of the property of the corporation, and the appointment of a receiver, might be obtained in this way. (See Morgan agt. The New-York and Albany Railroad Company, 10 Paige, 290.)
But the 36th section of the statute relating to proceedings against corporations in equity, (2 R. S. 463,) authorizes the party who has obtained a judgment against a corporation to
Corning and others agt. The Mohawk Valley Insurance Co.
apply at once, upon the return of an execution unsatisfied, for a sequestration and the appointment of a receiver. No new process against the defendant in the judgment is to be issued. No new suit instituted. The application to the court is by petition, founded upon the proceedings in the action in which the judgment has been recovered. It is a summary remedy provided by statute, and, as such, is expressly saved by the 471st section of the Code, which declares that that act shall not affect “any special statutory remedy” which had not theretofore been obtained by action. Nor is there anything in the proceeding inconsistent with any provision of the Code. I think, therefore, that the statutory provisions under which the proceedings have been had to obtain a sequestration of the defendants' property and effects, and the appointment of a receiver of the same, are still in force. If so, the defendants' property and effects are already in the hands of a receiver, appointed for the benefit of the plaintiffs in this action, as well as the creditor by whom the appointment was procured.
This motion must, therefore, be denied; but I think it should be without costs.