In re Myerberg , 291 N.Y.S. 519 ( 1936 )

McAvoy, J.

One of the receivers of the Union Cigar Company of Maryland, appointed by Circuit Court No. 2 of Baltimore City, Maryland, instituted proceedings under section 170 of the General Corporation Law of New York State, for an order directing the parties named therein to submit to examination before a referee designated in the order, concerning the assets of Union Cigar Company.[

The court granted that application ex parte.

The Chase National Bank and another party affected by the order moved to set it aside. Their motions were denied and two separate but substantially identical orders Were: ¡entered, from which they appeal to this court.

It nowhere appears in the petition that the petitioners, or ¡any other persons have ever been appointed receivers of the Union Cigar Company or of any of its assets by any court in the State of New York in any action or proceeding.

The receivers were appointed as such by a foreign 'court in a foreign State.

A receiver of a corporation or of its property not appointed as such by the Supreme Court of this State cannot invoke section 170 of- the General Corporation Law to procure an examination concerning the property of such corporation. Such an examination is by that section expressly limited to receivers not only appointed by a New York court, whether primary or ¡ancillary, but appointed pursuant to article 11 of the General Corporation Law.

The privilege of examination is available only to receivers appointed by a New York court, since-the application is required to be made to the Supreme Court held “ within the judicial district in which he [the receiver] was appointed.” From this it appears, ¡to all who will read that only a New York receiver can qualify. A foreign receiver cannot, since he was not appointed in any judicial district within this State.

Therefore, the orders should be reversed, with twenty dollars costs and disbursements, and the motions to vacate the order, of August 28, 1936, should be granted.

Martin, P. J., Untermyer, Dore and Cohn, JJ., concur.

Orders unanimously reversed, with twenty dollars costs and disbursements, and the motions granted.