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Yorkville Bank v. The Zeltner Brewing Co.

was thus his duty to protect such assets and hold the same subject to the order of the court. Under this order he was authorized to move to vacate a judgment which, upon its face, gave the plaintiff a right to issue an execution against the property of the corporation in his hands when such a judgment had been entered without authority and was void. I think, therefore, the motion should have been granted.

The further question whether this order of the Appellate Division in the Second Department could affect this receiver as it was made without notice to the attorney-general, and no copy of either the motion papers upon the motion to vacate the order appointing the receiver or of the proposed order of the Appellate Division entered upon that motion was served upon him, is presented. The order appointing the receiver having been made upon notice to the attorney-general, he was clearly entitled to notice of all applications to modify or vacate that order. But as we think that the judgment entered against the defendant was improperly entered because the court obtained no jurisdiction over the defendant, and that the receiver of the corporation had a right to move to vacate that judgment, it is not necessary to pass upon the effect of the failure to give notice to the attorney-general.

The order appealed from should be reversed with $10 costs and disbursements, and the motion to vacate the judgment granted, with $10 costs.

All concur.

NOTE. CORPORATION → RECEIVER-WHO MAY APPLY-SEE SAME CASE IN COURT OF APPEALS, SUPRA.

A stockholder and an officer, who is also a non-resident, may apply to the court for the appointment of a receiver where an action has been brought for the dissolution of the corporation, being a foreign corporation, in the state of its domicile.

Subdivision 3 of section 1810 Code of Civil Procedure authorizes such an application to preserve the assets where there are no officers empowered to hold the same. McNabb v. Porter Air Lighter Co., 44 App. Div. 102-104.

Yorkville Bank v. The Zeltner Brewing Co.

A party in interest may apply. U. S. Trust Co. v. N. Y., W. S. & B. Ry. Co., 6 Civ. Pro. 90.

OTHER RECEIVER.

A receiver in the State of New York may be appointed, notwithstanding the appointment of a foreign receiver, says the court. "There is a manifest distinction between a receiver of property of a corporation and a receiver of the corporation. Sections 1810 and 1812 of the Code of Civil Procedure do not interfere with

this power, and if they did it might well be that they would be unconstitutional as infringing the ancient jurisdiction of the court." Popper v. Supreme Council, 61 App. Div. 405-406; Phoenix Foundry v. North Riv., etc., 6 Civ. Pro. 106; Woerishoffer v. North River., etc., 6 Civ. Pro. 113.

TITLE OF RECEIVER---Continues until a court of equity in that action shall determine the question touching the funds and make a final order in the premises. Smith v. Danzig, 3 Civ. Pro. 127-136. WHEN RECEIVER NOT APPOINTED.

Where the dissolution of the corporation is voluntary a receiver cannot be appointed until the granting of the final order dissolving the corporation. In re Boynton, 6 Civ. Pro. 342.

Sufficient facts must be presented. State N. Y. v. Equit. Mut. F. I. Co., 25 Civ. Pro. 210.

NOTICE. A receiver may be appointed by the court upon the necessity appearing ex parte. Glines v. Supreme Setting order, etc., 22 Civ. Pro. 437.

SUPPLEMENTARY PROCEEDINGS AGAINST A FOREIGN CORPORATION.

May be maintained - "The policy of the State does not preclude the creditor of such a corporation from obtaining a preference upon assets here."-ANDREWS, Ch.J. Logan v. McCall Pub. Co., 23 Civ. Pro. 246-251.

Cecelia L. Slater, Executor, et al., v. James Slater, Executor.

CECELIA L. SLATER ET AL., AS EXECUTORS, ETC., APPELLANTS AND RESPONDENTS, v.

JAMES

SLATER, INDIVIDUALLY AND AS EXECUTOR, ETC., RESPONDENT AND APPELLANT.

COURT OF APPEALS-MARCH, 1903.

§ 192.

Practice-Appeal, by Leave of Appellate Division, From

Interlocutory Judgment.

An appeal, by leave of the Appellate Division, from an interlocutory judgment, of any kind, to this court, is an appeal from an order in an action which should not go on the regular calendar, but either party has the right to notice it for argument and place it upon the motion calendar at his convenience.

(Rule eleven, this court.) (Decided March, 1903.)

Motion to place an appeal upon the calendar as a preferred

cause.

John A. Garver, for plaintiffs.

James W. Hawes, for defendant.

VANN, J.-This action, brought by two of the executors of a deceased copartner against the surviving member of the firm, individually and as the remaining executor, resulted in an interlocutory judgment, which, upon appeal, was modified and affirmed as modified by the Appellate Division. From its interlocutory judgment entered accordingly, the Appellate Division granted both parties leave to appeal to this court and certified two questions to us for decision. Each party thereupon appealed from that part of the judgment by which he

Cecelia L. Slater, Executor, et al., v. James Slater, Executor.

felt aggrieved and both now unite in an application "for an order placing these appeals among the preferred causes on the present calendar" upon the ground that they are entitled to a preference under subdivision 5, section 791, of the Code of Civil Procedure.

The motion should be denied because it is unnecesary, as an appeal by leave of the Appellate Division from an interlocutory judgment of any kind is an appeal from an order in an action which should not go on the regular calendar, but either party has the right to notice it for argument and place it upon the Motion Calendar at his convenience.

A misapprehension seems to have arisen owing to the recent amendment of Rule 11, which formerly did not mention "appeals from interlocutory judgments overruling or sustaining demurrers," and it has been inferred by some that the judgments specifically mentioned are the only interlocutory judgments that can be placed upon the Motion Calendar. This is a mistake, as will appear from the following explanation of our purpose in amending the rule.

*

* *

Prior to 1895 section 192 of the Code of Civil Procedure provided that "an appeal from an interlocutory judgment overruling or sustaining a demurrer may be noticed for hearing on a motion day and heard as a motion." On the 6th of June, 1895, that section was repealed bodily by chapter 946 of the laws of that year, which was an act passed to adapt the Code of Civil Procedure to the changes made by the new constitution. This left the matter open to regulation by rule. The repeal of that section created doubt as to what calendar "an appeal from an interlocutory judgment overruling or sustaining a demurrer" should be placed upon, and to remove that doubt, on the 19th of June, 1896, we amended said rule so as to include such an appeal co nomine. We did not intend, however, to exclude an appeal, when duly allowed by the Appellate Division, from any interlocutory judgment, as the rule when carefully read plainly shows

William H. Zeltner v. Zeltner Brewing Co.

(Anderson v. Daley, 159 N. Y. 146). As our effort to end one misapprehension seems to have given rise to another, we file this memorandum to remove doubt and settle the practice. The motion should be denied.

PARKER, Ch.J.; GRAY, O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ., concur. Motion denied.

WILIAM H. ZELTNER, INDIVIDUALLY AND AS EXECUTOR, ETC., PLAINTIFF, v. THE HENRY ZELTNER BREWING COMPANY, DEFENDANT. WILLIAM B. SUTHERLAND, AS RECEIVER OF THE PROPERTY OF THE HENRY ZELTNER BREWING COMPANY, APPELLANT; YORKVILLE BANK, RESPONDENT.

COURT OF APPEALS-MARCH, 1903.

§§ 1810, SUBD. 3, 2419-2423.

Receiver of Corporation-Resignation of Officers and Directors.

Section 1810 of the Code of Civil Procedure, which authorizes the court to appoint a receiver of a corporation having no officers, in order to preserve its property, does not contemplate that its officers and directors may resign for the purpose of throwing the company into the hands of a receiver. Their resignation, under such circumstances, is illegal, and the appointment of the receiver is ineffectual to prevent a creditor from prosecuting to judgment and collecting his claim against the company. (Decided March, 1903.)

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