Corning v. Mohawk Valley Insurance , 11 How. Pr. 190 ( 1855 )

Harris, Justice.

It is not denied that, but for the provisions of the Code, the proceedings for the sequestration of the property and effects of the defendants, and the appointment of a receiver, would have been regular and effectual, to vest such property and effects in the receiver. But it is insisted that, since the adoption of the Code, such sequestration can only be had in an action prosecuted for that purpose. In this view I cannot concur. An action commenced for this purpose might, no doubt, be made effectual. A sequestration of the property of the corporation, and the appointment of a receiver, might be obtained in this way. (See Morgan agt. The New-York and Albany Railroad Company, 10 Paige, 290.)

But the 36th section of the statute relating to proceedings against corporations in equity, (2 R. S. 463,) authorizes the party who has obtained a judgment against a corporation to apply at once, upon the return of an execution unsatisfied, for a sequestration and the appointment of a receiver. No new process against the defendant in the judgment is to be issued. No new suit instituted. The application to the court is by petition, founded upon the proceedings in the action in which the judgment has been recovered. It is a summary remedy provided by statute, and, as such, is expressly saved by the 471st section of the Code, which declares .that that act shall not affect “ any special statutory remedy ” which had not theretofore been obtained by action. Nor is there anything in the proceeding inconsistent with any provision of the Code. I think, therefore, that the statutory provisions under which the proceedings have been had to obtain a sequestration of the defendants’ property and effects, and the appointment of a receiver of the same, are still in force. If so, the defendants’ property and effects are already in the hands of a receiver, appointed for the benefit of the plaintiffs in this action, as well as the creditor by whom the appointment was procured.

This motion must, therefore, be denied; but I think it should be without costs.