Rockwell v. . Merwin

The amendment of the complaint cured any defect in it. And the insertion of the word "duly," in the allegation that the plaintiff was appointed receiver, gave him the right to show on the trial all the facts conferring jurisdiction. (Code, § 161.) On the trial he did show facts sufficient to establish that he was regularly, and in due form of law, appointed the receiver of Farrel.

It was necessary that the order appointing him should be filed and recorded in the office of the clerk of the city and county of New York. It was shown on the argument at General Term, that this had been done before the commencement of this action. And this cured the defect in the proof before the referee. (Bank ofCharleston v. Emeric, 2 Sandf., 718.)

The point made by the appellant, that the plaintiff did not show that the judge who made the order for the appointment of the plaintiff as receiver was the same officer before whom the supplementary proceedings were initiated, was not taken before the referee. Nor does it appear, inasmuch as there is no copy given in the case of the records given in evidence, that the objection, if taken, had any foundation.

After his appointment as receiver, the plaintiff had general authority, by virtue of the then ninety-second rule of the Supreme Court, by a judge of which he was appointed, to commence a suit. Having general power to sue, he could select his tribunal.

The motion to dismiss the complaint, made at the close of the plaintiff's case, was properly denied. There had been positive and uncontradicted proof of the agreement between Farrel and the defendant, and of the balance due Farrel thereon. And although the account of Farrel's services, etc., was from a partial ledger, it had been submitted to the defendant, and was not objected to by him. It is to be inferred easily from the testimony that all the other books of the hotel were in his control, and subject to his inspection at the time when the account was submitted to him.

The other points made by the appellant are upon questions of fact determined by the referee, and are not reviewable here.

The judgment appealed from should be affirmed, with costs to the respondent.

All the judges concurring,

Judgment affirmed.