Chicago Title & Trust Co. v. German Insurance , 104 N.Y.S. 253 ( 1907 )

Scott, J.:

The defendant, a foreign, corporation organized under the laws of the State of Illinois, became insolvent in ¡November, 1906, and on the. nineteenth of that month the Chicago Title and Trust Company of Chicago was appointed receiver of all of defendant’s assets, and on the same day the defendant executed an assignment of all its assets to the said trust company. It is expressly conceded by'the parties to this appeal, and for the purposes of the appeal will be assumed, that this, assignment was sufficient in form and. substance to vest .in said trust company the title to all of the assets of the defendant not only in Illinois, but in every State in the United States. On November 28, 1906, this action was commenced for the purpose of procuring the appointment of ancillary receivers in this Staté. 1;

•The complaint sets forth the insolvency of defendant the action in Illinois; the appointment of the receiver there, and the execution of the assignment to such, receiver.' It alleges that the .Chicago Title and Trust Company has thereby become entitled to the aforesaid assets in the.State of blew York, but that, for convenience in collecting them, the appointment of ancillary receivers in this State has be.comé necessary. Thereupon the court appointed the Chicago Title and Trust Company and Leo Schlesinger ancillary receivers of the assets of déféndant in this State, and such receivers duly qualified. It Was discovered that the Trust Company of America had in its possession cash assets of the, defendant amounting to $15,000, and the receiver Schlesinger made a demand on the said trust company for such assets. The Trust. Company of America Was perfectly willing to pay over the money, but demanded for its own protection an order signed by both of the ancillary receivers. .Mr. Schlesinger ..prepared such an order, and after signing it himself, as receiver, turned it over tti his coreceiver for signature. The Chicago Title and Trust Company declined, to sign the order, on. the ground that since it claimed to have acquired title to all of defendant’s assets, under the assignment of 'November nineteenth, the defendant had no longer owned such assets when the ancillary receivers were appointed on November twenty-eighth, and consequently nothing, passed to such ancillary receivers. . It appears that between November nineteenth and November twenty-eighth three attachments had been issued in actions brought in this State, against the property of the defendant here, and the Chicago Title and Trust Company seems to have apprehended that if it should receive- and Collect the assets here under its authority as ancillary receiver, that act might be construed as an admission that on November twenty-eighth, when the ancillary receivers were appointed, the title to the assets remained in the insolvent defendant. It, therefore, prefers to rest its claim to the assets upon the title conveyed by the assignment of November nineteenth. The receiver Schlesinger, while conceding that the assignment of November nineteenth transferred- the title to the assets to the Chicago Title and Trust Company, still considered that he had a duty to perform with respect to them, and very properly brought tlie matter before the court, by means of a motion that his coreceiver be directed to execute an order, as ancillary- receiver, upon the Trust Company of America to- pay over the money held by it to the credit of the defendant. From an order denying this motion he now appeals. If we assume, as both parties'to this appeal assume, that the assignment of November nineteenth transferred to the Chicago Title' and Trust Company, the title to all of defendant’s assets in this State, as well as elsewhere, it is apparent that the ' motion was properly denied, for the ancillary receivership could only attach and apply to assets', to which the defendant held title on November twenty-eighth when the ancillary receivers Were appointed. If the defendant had already conveyed away allof the assets, so that it owned nothing in this State,-there was nothing to which the receivership could attach or which the receivers Were entitled to collect. It follows'that the order must be affirmed, but under the circumstances the affirmance will be without costs.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

; Order affirmed, without costs.