Galwey v. United States Steam Sugar Refining Co.

Barnard, J.

The statutes provide for but three cases in which a receiver of property of corporations (other fba.n moneyed corporations) can be appointed: 1st. Upon the application of a creditor by judgment or decree, on the return of an execution unsatisfied. (2 R. S. 463, § 36.) 2d. When a corporation has been insolvent for a year, or has neglected or refused for a year the payment of its debts, or has suspended its business for a year. (Id. § [38] 46.) 3d. Upon the application of the directors or trustees when, in their judgment, the condition of the corporation makes a voluntary dissolution desirable. (Id. 467, § 58.)

The case made by the complaint clearly does not fall within any one of the above provisions. The case made by the complaint falls within § 43, and particularly subdivisions 3,4, 6, 7 and 8 of that section. This section (43) does not authorize the appointment of a receiver, nor is there to be found any other section which authorizes a receiver of the property of the corporation to he appointed in any action or proceeding brought for any of the causes mentioned in section 43.

It is obvious that the appointment of a receiver of the property of the corporation is not necessary for the protection of the rights of the parties plaintiff or applicant, under section 43. In all those cases the proceeding is not against the corporation as a corporate body, but against its officers; and none of the matters mentioned in that section are cause for the dissolution of the corporation. It is difficult to see how, under such circumstances, the property of a corporation can be vested in a receiver. We do not mean to be understood as holding that under the general equity power of the court a receiver may not be appointed of property which a director, or trustee, or a third party, proceeded against under section 43, may have in his possession and hold in invitum against the corporation to protect it against waste, loss or destruction pendente lite, and to deliver it to the corporation in the event of its being decided to belong to the corporation. This, however, is far different from taking the property held by the corporation and transferring its possession to a receiver, to be held for the benefit of creditors, when no cause for the dissolution of the corporation exists. It is evident that the statute does not authorize a receiver of the property held by corporations in the cases specified in section 43, since, from the very nature of such proceedings and the causes for which they are allowed, such a receivership would be improper. Under the case as made by the complaint, the motion for a receiver was properly denied, and the order should be affirmed with $10 costs.

Clerk®, J. concurred.