30 N.Y.S. 1027 | N.Y. Sup. Ct. | 1894
In addition to the grounds assigned and discussed
in the case of Hirshfeld v. Kursheedt (decided herewith) 30 N. Y. S. 1023, another question is here presented. It is insisted that there is a defect of parties defendant, based upon the theory that the complaint fails to show that the plaintiff has obtained leave to make the receivers parties defendant. As matter of fact, the receivers are defendants-, and the objection is directed to the failure to allege that leave was obtained to make them such defendants. While it would have been better to have secured permission, and to have alleged it, we think that the appellant is right in his contention that it has never been held in this state that the commencement of .an action against a receiver without leave presents a jurisdictional • ■question; the courts never going beyond the proposition that, when .an action has been commenced against a receiver without leave, the court acquires jurisdiction of the receiver by service of the .summons, and the remedy applied is either a stay of proceedings upon the part of the plaintiff, or to punish him for contempt of •court, or both, and upon such application, if the court believes that ithe case is a proper .one for granting leave, such permission will
