Palen v. Bushnell , 58 N.Y. Sup. Ct. 423 ( 1889 )

Brady, J.

The plaintiff was appointed receiver of Henry Bangs in October, 1862, on proceedings supplementary to execution, by a judgment creditor, and this action was commenced in December, 1863, for an accounting between the plaintiff as such receiver and the defendants, as to certain real and personal property fraudulently transferred by Bangs to Bushnell, on the eve of insolvency, without consideration, and with intent to hinder, delay, and defraud judgment creditors. The defendant Bushnell died June 13,1887, leaving a last will and testament, in which he appointed Adelaide E., his wife, executrix, and Ezra D. Bushnell and Albert Van Der Werken executors. The will was admitted to probate, and letters testamentary issued to the persons named. At the time of Buslmell’s death this action was pending before a referee, and the defendant, after a motion had been made to dismiss the complaint, which was denied, was about to enter upon his defense.

It is hardly necessary to say that the action is one which may be continued, in the exercise of the discretion of the court. Coit v. Campbell, 82 N. Y. 509; Holsman v. St. John, 90 N. Y. 461; 1 Rumsey, Pr. 663. The reasons assigned for a reversal of the order made permitting the'continuance are ingenious, but not meritorious.

The first suggestion is that the order should be reversed, for the reason that the plaintiff has no title to the cause of action, and this is predicate of a supposed irregularity in the order appointing the receiver. It is sufficient to say that this is not a subject which will be disposed of upon affidavits, and especially as it is necessarily before the referee, and, if any benefit shall arise out of any incident of that kind, the defendant will be entitled to it.

The next proposition is that the judgment in the action in which the plaintiff is appointed receiver is paid and satisfied, and this is founded upon the presumption arising from the recovery of the judgment in August, 1862, which is more than 25 years ago. Section 376 of the Code provides that after a lapse of 20 years the presumption of payment of judgments shall be conclusive. But that section does not apply to a remedy founded upon the judgment instituted long before the period mentioned had expired, and, indeed, within two years after the judgment was recovered.

The next point presented is that the motion should not be granted because the action was brought by the receiver without leave of the court, and that to authorize him to continue would be a judicial sanction of a proceeding commenced without authority. It is sufficient in answer to this point to say that it is too late after issue joined to urge successfully such an objection. Section 499, Code.

The next suggestion is that the plaintiff is not now a resident of this state, and that the plaintiffs in the action in which the receiver was appointed are both dead, and have no personal representatives, and there are no persons in existence who would be entitled to the moneys to be collected in this action. There is also an assertion that the bond given by the receiver is void, and that the obligee is dead. None of these suggestions are of the slightest consequence on an application of this kind. The case seems to be regularly in court, and, having been sent to a reference, it must be assumed that every obstacle to that procedure was encountered and overcome.

It is further contended that a simple order of continuance was all that the plaintiff was entitled to, which would enable the plaintiff to avail himself of all the pleadings and proceedings; and, again, that the testimony upon the trial should not b.e permitted to stand. It is only necessary to.say, in answer to these propositions, that it was purely a matter of discretion, to be exercised by the court below, and that there is nothing in the ease which in our judgment indicates that the discretion was erroneously exercised.

Again, it is urged that the executors can only be brought before the court by a supplemental summons, and the action continued by supplemental pleadings, and reference is made to Code, §§ 755-760, inclusive. It will not be necessary, in disposing of this appeal, to consider these provisions in detail. It is sufficient to say that, as there were two defendants in this ease, the continuance was provided for by section 757; the court of appeals having decided in Coit v. Campbell, supra, that if there were originally more than one defendant in the action, and all but one have died, that one is a sole defendant within this section. The cases upon this subject are collated and well stated in 1 Rumsey, Pr. 663 et passim. The order should be affirmed, with $10 costs and disbursements. All concur.