Smith v. New York Consolidated Stage Co. ( 1865 )

Cardozo, J.

The counsel for the plaintiffs having served me with an order quashing and vacating the writ of prohibition granted by the supreme court, requests me to proceed to discharge my duty to settle the order herein. I shall say a few words in regard to the selection of a receiver.

First. As to the names suggested on behalf of the defendants. After having decided that Mr. Chester Lamb had either been guilty of a breach of trust or a clear violation of law, it is not likely that I should immediately confer another trust upon him. Nor is it reasonable to expect me to appoint Mr. Schell. He is a lawyer, and must certainly be presumed to have known that the assignment to him was either a fraud or a violation of an express statute, and having assented to be the assignee under such circumstances, it is unreasonable to ask the court to make him the receiver.

Recorder Hoffman is my personal friend. I have the highest respect and esteem for him, and that respect and esteem prevent my appointing him. The indelicacy of his appointment in this case is so manifest, that I am quite certain his name has not been suggested with his concurrence, Mr. Oliver Charlock I know, from having when at the Bar argued a case as counsel on his behalf. I believe him to be a gentleman of character and capacity, but my personal acquaintance with him is not sufficient to justify me in appointing him against the objection of the plaintiffs. As to the gentlemen proposed by the plaintiffs, I have only to say that I am not aware that I have any personal acquaintance with either of them, and as they are not assented to by the defendants, they must also be rejected.

It devolves upon me, therefore, to select a receiver myself, and I have concluded to tender the place to John Murphy, Esq., the receiver of taxes. An additional reason for selecting Mr. Murphy is, that I am informed that the supreme court, in a similar suit, has also appointed him.