Scroggs v. Palmer , 1873 N.Y. App. Div. LEXIS 186 ( 1873 )

By the Court,

Talcott, J.

This action is brought by the plaintiff as receiver of the property of Cynthia M. Morse, under supplementary proceedings, to recover a debt alleged to be due from the defendant to the judgment debtor. In his complaint the plaintiff states the facts in detail, showing jurisdiction in the county judge to make the order of appointment, and avers the approval and filing of his bond, as receiver. The defendant demurs to the complaint, and for cause of demurrer alleges that the plaintiff has not legal capacity to sue ; that the judgment debtor ought to'be a party, and that the complaint does not state facts sufficient to constitute a cause oi action. Tire last cause of demurrer is the only one insisted upon, on the appeal, and it is claimed that the complaint is defective because it does not aver that the order appointing the plaintiff receiver was filed and recorded under § 298 of the Code. Whatever we might think of the question thus presented, if it were a new question, we understand it to have been in substance decided by the Court of Appeals in Rockwell v. Merwin, (45 N. Y. 166.) In that case the plaintiff sued as receiver, and stated nothing, in his complaint, only that he had been appointed receiver of the property of the judgment debtor, by one of the justices of the Supreme Court, on the application of the judgment creditors, wholly failing to show any facts which brought the case within the jurisdiction of the said justice.

In that case an objection was taken on the trial that the complaint did not state facts sufficient to constitute % cause of action. As we understand the case, there was no allegation in the complaint that the order appointing the plaintiff had ever been filed or recorded in the proper office. After the objection had been made, the complaint was amended, on the trial, by the insertion of the word “duly” between “was” and “appointed,” so that the complaint would read that the plaintiff was duly appointed receiver. This, the Court of Appeals held, cured all the defects of the complaint, under § 161 of the Code. That section only makes the word duly a substitute for the detailed allegations, showing jurisdiction in the court or officer. The attention of the court was called to the question of the filing of the order and recording the same, as it appears the plaintiff had omitted to prove these facts on the trial; and in regard to that the court says : “It was necessary that the order appointing him should be filed in the office of the clerk of the city and county of New York. It was shown on the argument at the General Term that this had been done before the commencement of the suit, and this cured the defect in the proof before the referee.” The decision therefore must be understood as holding that a.n averment of the filing and recording of the order is not necessary, in pleading, provided jurisdiction to make the order is averred; on the ground, probably, that the due filing and entry of the order by the officers of the court is to be presumed from the averment that it was made by the judge having jurisdiction.

[Fourth Department, General Term, at Buffalo, January 7, 1873.

The order must be affirmed, with leave to the defendant to answer in twenty days, on "payment of costs.

Order affirmed, ^(a)

Mullin, Talcott and E. D. Smith, Justices.]

(a) An appeal from the above decision was dismissed by the Court of Appeals. See 55 N. Y. 643.