Case of the North American Gutta-Percha Co.

17 How. Pr. 549 | N.Y. Sup. Ct. | 1859

By the Court.—Davies, J.

A motion was made at the special term for an order upon the receiver, appointed on the dissolution of the above-named corporation to pay to the petitioners, Noble, Hammet, and Packer, two judgments recovered by them against the corporation. It appears from this petition that such judgments were recovered and executions issued; and as they allege, levies made before the appointment of the receiver. They also allege that the receiver has taken possession of the property levied on and sold the same, and has the proceeds in his hands. This application was made by the plaintiff in the judgments, without the sheriff joining therein, and .on the denial of the receiver that any such levy had been made, and an averment that the judgment had been collusively obtained, the judge of special term denied the motion without prejudice to the right'of the sheriff to make any motion he may be advised. From this order an appeal has been taken.

There can be no doubt that the receiver took the property subject to all existing equities and liens. Whatever liens were acquired on the property at the time of his appointment may be enforced, and no suit or proceeding can be instituted against the receiver but by the permission of the court. (Noe a. Gibson, 7 Paige, 513.) If the sheriff had made a levy on the property which subsequently came into the hands of the receiver, it is for him to enforce that levy. He is entitled to collect the money, and apply it on the execution, if the levy was made. It is his duty to do so. If the officer of this court has taken possession of the property thus levied on, and sold the same, he is bound to account to the sheriff for the same.

As the order appealed from is made without prejudice to the rights of the sheriff to make such application to this court as he may be advised, we see no reason for disturbing it. The sheriff is the party entitled to the possession of the goods levied on by him, and if by order of this court, and through its officer, these goods have been converted into money, it follows that the sheriff is entitled to such proceeds.

The order appealed from is affirmed with costs.