Citation Numbers: 53 A.D. 425, 65 N.Y.S. 1081, 1900 N.Y. App. Div. LEXIS 1946
Judges: Woodwaed
Filed Date: 7/1/1900
Status: Precedential
Modified Date: 11/12/2024
The plaintiff in this action was appointed receiver of the property of Charles W. Denike, one of the defendants, in supplementary proceedings on or about the 30th day of December, 1895. He duly qualified, and has since acted in such capacity. Sometime subsequent to his appointment as such receiver, plaintiff brought the above-entitled action to set aside as fraudulent a certain deed, dated the 17th day of April, 1893, executed and delivered by Charles W. Denike to his wife, Mary A. Denike. The action resulted in a judgment which ad judged and decreed that the said conveyance was “ null and void and that the judgments aforesaid be and hereby are declared to be a lien upon the aforesaid premises fraudulently and collusively attempted to be conveyed as aforesaid.” It was also “ ordered, adjudged and decreed that the plaintiff, the said James A. Whyte, as receiver of the property of Charles W. Denike, shall be at liberty to apply to this court at any time, without notice to the defendants, Mary A. Denike or Charles W. Denike, or either of them, for further directions upon the foot of this judgment and for such other and further relief as to the court may seem just and proper.”
The appellant urges that under the judgment and decree of January 18, 1900, the court had power either to appoint a new receiver to collect the rent or, as the plaintiff was such, to direct him to collect the rents; but in this we are unable to concur. Whatever may-have been the theory of the plaintiff in bringing the action, it resulted in a judgment establishing the lien of the judgments under -which the plaintiff was appointed as receiver and not in conveying the title of the premises to him as such receiver. Section 2468 of the Code of Civil Procedure provides that the “property of the judgment debtor is vested in a receiver, who has duly qualified, from the time of filing the order appointing him, or extending his receivership, as the case may be,” subject to provisos not applicable to this proceeding. At the time of filing the order under which the plaintiff was appointed as receiver, the defendant Charles W. Denike had no property in the premises in dispute; the title was in Mary A. Denike, one of the defendants, and as between these defendants the conveyance was valid. It was void only as to the creditors of Charles W. Denike. The latter having no interest in the property at the time of the filing of the order appointing plaintiff as receiver, the plaintiff took no title by virtue of his appointment. He was, however, authorized by chapter 314 of the Laws of 1858 (3 R. S. [9th ed.] 2166), to “ disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor,” and he had the right to bring the action to set aside the transfer, and to make the premises subject to the lien of the judgment creditors in whose behalf he was acting. (Stiefel v. Berlin, 28 App. Div. 103, 106, and authorities there cited.) This the judgment entered in the action at bar accomplished, but it did not vest title in the plaintiff, and the provision of the judgment that
The plaintiff has a right to have the sheriff sell the premises described in the judgment for the benefit of the creditors in whose place he stands, but he has no title to the property, and whatever is. left after satisfying the claims of the creditors represented by the judgments under which he is acting, and after paying the costs, etc., belongs to the defendant Mary A.'Denilce, or to snch other creditors as may be in a position to assert claims against it. (Stiefel v. Berlin, supra; Moore v. Duffy, 74 Hun, 78.) The receiver having no title, he is not entitled to the rents and profits of the premises, and the order appealed from should be affirmed.
All concurred, except Jenks, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.