Halpin v. Mutual Brewing Co. , 91 Hun 220 ( 1895 )

BROWN, P. J.

The point made by the appellants, that the original orders authorizing the receiver to pay the judgments in favor of the West Side Bank and Mr. Nester, and the mortgage held by Mr. Tietjen as trustee, were granted ex parte, needs no consideration, for ■the reason that the order appealed from was made after the hearing •of a motion to vacate said ex parte orders, upon which motion all parties entitled to notice were heard, and the facts were fully presented to and considered by the court. That motion was treated as •an original application, and the order made thereon is the one from which the appeal now before us was taken. We are of the opinion that the order is fully warranted by the facts of the case.

The counsel for the appellants has directed his main argument to the justification of the appointment of the receiver, and to the demonstration that distribution of the corporate property among the creditors can also be made in this action. It is a sufficient answer to the latter proposition that no attempt has been made in this action by the plaintiff or the receiver to provide for the payment of the creditors. Although the decision in this action was filed in March, 1894, the judgment was not entered until the order appealed from was made; and during this period of 15 months the creditors were restrained from compelling payment of their claims, while the business was being conducted by the receiver. It is very evident from the moving affidavit that this delay was for the purpose of endeavoring to effect ■some settlement of the claims of creditors. But such a purpose affords no justification for the continuance of a receivership, or of an injunction against creditors’ prosecuting their just claims. If it was the purpose of the directors that the corporate property should ¡have been distributed among its creditors, they could at any time ¡have applied for a voluntary dissolution of the corporation. The •validity or propriety of the appointment of the receiver is not assailed. It was justified before the trial of the action by section 1810 of the •Cbde, and was properly continued after the trial to carry the judgment into effect. Section 713. But the action did not contemplate ¡a distribution of the corporate assets among creditors, nor a dissolution of the corporation. It was authorized under sections 1781 and 1782 of the Code of Civil Procedure. The complaint alleged waste of corporate assets, and wrongdoing and mismanagement on the part of three of the directors, and others confederating with them, and sought an accounting from said directors, and a restraint of the alienation of corporate property. Before the case was decided the offending directors had retired from office, and others had been elected in their place, and the judgment affords all the relief that the corporation can have against its offending officers. There is no finding in the decision that the corporation is insolvent, and no adjudication of that fact, •and there is no statement to that effect in the affidavit of the receiver: Under this condition of affairs, it is difficult to see why the receivership is continued. The object of the action has been accomplished. Creditors should now be permitted to assert their claims, and pursue such remedies as the law affords them.

The case of Duncan v. George C. Treadwell Co., 82 Hun, 376, 31 N. Y. Supp. 340, is quite like the case before us, and sustains the order appealed from. It should be affirmed, with $10- costs and disbursements.

DYKMAN, J., concurs.