Citation Numbers: 97 A.D. 79, 89 N.Y.S. 656
Judges: Woodwabd
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
The learned court at Special Term, in a memoranda in this matter, says : “ I think the propositions on which the motions are based are not even debatable,” and we .are inclined to concur in this opinion. It appears from the petition that one Berthold A. Reiss, now deceased,, was appointed receiver of the John Good Cordage and Machine Company on the 15th day of July, 1897, and that he retained as his attorneys the appellants in this proceeding. On the 9th day or January, 1897, the said cordage -company had máde,. executed'and delivered to the Kings County Trust Company of Brooklyn, as trustee, a mortgage or deed of trust for the sum of $300,000, covering its properties in Kings and Queens counties, and.bonds aggregating $106,000 had been issued and disposed of- to Frank & J. G. Jenkins, a corporation, under, the provisions of this trust deed. The latter corporation, upon the refusal of the Kings County Trust Company to act, brought an. action for the foreclosure of the mortgage,. and Mr. Reiss, as receiver, ■ under advice of his attorneys, defended the action, alleging the fraudulent character of the-mortgage, and the litigation resulted in the court holding that the same was fraudulent and void as against the receiver and judgment creditors., (Jenkins v. John Good Cordage & Machine Co., 56 App. Div. 573; affd., 168 N. Y. 679.) In the foreclosure action James J. Phelan and David H. McAlpiri, as judgment creditors, whose rights in the cordage company’s property had become vested,' were -made parties, and appeared by their attorneys' throughout the litigation, . and so far as: appears from ¡the record, were as instrumental! in bringing about the results as the attorneys for the receiver. Messrs. Wallach and Cook, attorneys for the receiver, now move for an allowance of $15,000 for services, this sum to be paid out of 'the- property of the cordage company ahead of the judgment creditors, upon the theory that they have rescued this property and made- it available for the .payment of these, claims; That is, parties who- have appeared in a litigation by their own attorneys, and who have-ad vised and. consulted with: the attorneys for .the. receiver^, as
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.