61 N.Y.S. 545 | N.Y. App. Div. | 1899
The defendants demur to the complaint herein on two grounds: First, that it appears upon the face of the complaint that there is a defect of parties defendant (that the Lebanon Springs Railroad Company is a necessary party defendant); second, that the complaint does not state facts sufficient to constitute a cause of action. The complaint does not state in terms whether the receiver, William V. Reynolds, was made such in a statutory action for sequestration of the property of an insolvent corporation, or whether appointed by the court pendente lite in some equity action, nor whether he was a temporary receiver or permanent receiver, but the complaint does allege that he was made receiver by order of the supreme court. If he was permanent receiver in a sequestration action, he became such upon a judgment of dissolution of the Lebanon Springs Railroad Company, and was the sole representative of its property, and the prayer of the complaint to have a lien declared upon the property might properly be granted. But whether appointed in a statutory action or in an action in equity pendente lite, it is clear from the complaint that Elnathan Sweet, the present receiver, was appointed on the death of Reynolds to fill his place, to succeed him, to take up and carry forward the functions and duties of Reynolds. So that, if there existed any cause of action in this plaintiff against Reynolds in his capacity as receiver, I see no reason why it may not be prosecuted against his successor, Sweet. It may well be that not all the relief demanded in the complaint can
That the plaintiff may bring action against this receiver to have his claim for coal sold to and used by the receiver adjusted without suing the company or any other party, I think, is plain. Such an action can ordinarily serve no purpose where the receiver does not deny the claim, but, where he does, leave to sue is given as a matter of course. Presumably such was the moving consideration of the court in granting leave to sue. ■ It is not plain that this plaintiff may not also, in this action, have determined as between himself and the Hilton Bridge Construction Company the claim of priority of payment from any funds in the possession of the receiver properly at his command to pay running expenses of the road. That he cannot charge the property of the railroad company, if that company in fact exists, without bringing it in as a party defendant, only goes to the extent of his relief, and that can be safely left with the trial court. I think the demurrer should have been overruled.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to answer within 20 days after service of a copy of this order upon payment of such costs.' All concur.