In re Commercial Bank , 54 N.Y.S. 722 ( 1898 )

FOLLETT, J.

Applications for orders affecting receivers are, in effect, motions in the action in which the receiver was appointed (Rinn v. Insurance Co., 59 N. Y. 143; In re Thompson, 10 App. Div. 40, 41 N. Y. Supp. 740; Smith, Rec. § 87); and the character of a motion is not changed by entitling the moving papers, “In the Matter of,” etc., instead of in the action. An application made on notice for leave to sue a receiver must be made in the judicial district in which the action wherein the receiver was appointed was brought, or in a county adjoining the county in which the action was brought. Code Civ. Proc. § 769; Rinn v. Insurance Co., supra; Wilkinson v. Construction Co., 66 How. Prac. 423; Attrill v. Improvement Co., 25 Hun, 376; Attorney General v. North America Ins. Co., 6 Abb. N. C. 293. The practice of applying for orders in such cases in districts remote from that in which the venue of the action is laid, in which the receiver was appointed, cannot be sanctioned; for it leads to great inconveniences, and tends to promote conflicts between the courts of the different districts, which should be avoided. If a receiver can be controlled by the courts in a remote part of the state, there is nothing to prevent a motion being made in New York to control the action of a receiver appointed in Erie. If it be conceded that leave to sue a receiver ¡may be granted by the court on an ex parte motion, the case of the respondent is not helped, because it voluntarily gave notice of the motion, and brought the receiver into court, and he was bound to resist the application or suffer default, and so lose his right to review the order. This order affects a substantial right, and, though whether such an order should be granted rests largely in the discretion of the special term, yet the discretion of that court is subject to review by this court. In re Duff, 10 Abb. Prac. (N. S.) 416.

The order appealed from should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs, but without prejudice to the right to make a new motion in the Fifth judicial district for leave to sue. ' The motion to dismiss the appeal is denied, without costs. All concur.