220 F. 190 | S.D.N.Y. | 1915
(after stating the facts as above). I do not find it necessary in this case to decide whether the possession of the receivers relates back to the time of the filing of the order for the following reasons. The receivers are entitled, regardless of the form of the papers, to possession only of such assets as were owned by the corporation at the time of filing either of the bill or of the decree appointing them. If the corporation acquires any assets thereafter, it is not relevant to the sequestration suit. Now the contract of sale was an existing asset of the corporation, which the receivers had the option to accept or reject. If they rejected it, it remained an asset of the corporation; if they accepted it, they took it cum onere.' At the time when they became entitled to it, however, no delivery had been made, the seller still had his lien, even assuming title had passed. A delivery thereafter to the corporation would not be a delivery under the contract, unless the receivers eventually elected to reject, because the court had forbidden the corporation thus to assume any of its existing assets, among others, such contracts of sale. When the receivers assumed such a delivery by taking the goods into their own possession, they could do so only by exercising their option to assume the contract. I need not consider the effect of a delivery to the corporation if the receivers had rejected the contract; it would be a matter outside this suit. It is enough that the rights of the receivers date at the latest from the entry of the order, and that their right to possession can arise only by reason of either the corporation’s actual possession at that time, or of its right to possession by virtue of a contract then existing.
Assuming, therefore, even that the receivers’ possession does not relate back,' I find that their assumption and retention of the corporation’s possession arising after the bill and decree were filed can only be treated as an exercise of their option. The receivers are therefore instructed that they must either pay for the goods the contract price, or
Such an order will pass upon the petition.
