Fassett v. Tallmadge , 13 Abb. Pr. 12 ( 1861 )

Hogeboom. J.

—I do not think that, upon a mere formal motion to" substitute one person instead of another as receiver in an action, the opposing party is at liberty to examine the regularity of the original order appointing such receiver, or of the proceedings generally in the suit, even though the plaintiff moves upon all the pleadings, decree, and proceedings in the case. It would act as a surprise upon the latter, and he is entitled to notice of so serious an objection. If there be no personal incapacity in the proposed substituted receiver, I will grant the motion, without prejudice to the right of the defendant to move in the usual way to set aside the whole proceedings as irregular.

Motion granted, without costs.