34 A.D. 242 | N.Y. App. Div. | 1898
"By the provisions of section 2468 of the Code of Civil Procedure, title to the property of a judgment debtor becomes vested
It seems to us, therefore, that the application for substitution was proper and even necessary for the protection of the right repre-sented by the receiver. Authority for such course is found in section 756 of the Oode of Civil Procedure. It is said, however, that the granting of such order is discretionary with the court, and as the court below denied the motion,' in the exercise of dis
In the present case, however, the court did not exercise its discretion. The determination went upon the ground that the legal right of the assignee was superior to the title- of the receiver. This, as we have seen, was a mistake of law, and. in no sense the exercise of discretionary power. The fact that the. assignee is not a party to the action .creates no obstacle. The right of the receiver is to have whatever interest was in the judgment debtor at the time of his appointment, and in this litigation the receiver simply takes the judgment debtor’s place. This in no wise affects the legal rights of the assignee.- She is not estopped or affected by the terms of the order of substitution, and can at any time assert any legal right of which she is possessed. The order of substitution of the receiver, however, should provide for the protection of such- rights as the attorney for the plaintiff may have, and he should be permitted to actively continue in the litigation, if he so elects, that he may care for his interest therein.
•. The order should be reversed and- the motion for substitution should be granted.
All concurred.
Order reversed,- with ten dollars costs and disbursements, and motion for substitution granted.