134 N.Y.S. 747 | N.Y. App. Div. | 1912
The action was in replevin to recover from the defendant a certain promissory note in the defendant’s possession. The answer after a general denial, except as to the incorporation of the plaintiff, sets up two separate defenses. In the first defense the defendant alleges that he was on October 23, 1908, duly and regularly appointed by the Supreme Court of the State of New York receiver of the Greene Gold-Silver Company, a foreign corporation organized under the laws of West Virginia, in proceedings supplementary to execution and that the defendant duly qualified as such receiver; that on October 23, 1908, the defendant as such receiver came into and took possession of the said note mentioned, described and set forth in the plaintiff’s complaint, and that since said date the defendant was and still is in possession of such note as receiver. For a second defense, after realleging his appointment and qualification as receiver and that he took possession of this note as the property of the judgment debtor, he alleges that on the 8th of March, 1910, the plaintiff instituted certain proceedings in the Supreme Court entitled “In the Matter of Supplementary proceedings, Richard Arnold, Judgment-Creditor, against the Greene Gold-Silver Company, Judgment-Debtor,” to compel the defendant herein as such receiver to deliver and turn over
We come, therefore, to the question as to whether the facts alleged in the answer as admitted to be true constituted a defense to the plaintiff’s cause of action. In neither defense is there any denial as to the allegations of the complaint. The essential facts pleaded in these two defenses are that the defendant as receiver in supplementary proceedings of a foreign corporation “ came into and took possession of the said note mentioned, described and set forth in the plaintiff’s complaint herein, and that since said date the said defendant was and still is in possession of the said note, as such receiver; ” that the plaintiff instituted a proceeding in the Supreme Court of the State of New York in proceedings supplementary to execu
Proceedings supplementary to execution are regulated by the Code of Civil Procedure. By section 2432 of that Code the different proceedings to examine the judgment debtor and appoint a receiver are specified. Subsequent sections contain provisions for the examination of the judgment debtor and the examination of persons having property belonging to the judgment debtor. Section 2464 provides that the judge may. make an order appointing a receiver of the property of the judgment debtor, and section 2468 provides that the property of the judgment debtor is vested in the receiver who has duly qualified from the time of filing the order appointing him or extending his receivership as the case may be. Thus the receiver is.entitled to the possession of . the property of the judgment debtor, and if he takes possession of the property of third persons not the property of the judgment debtor he certainly is not entitled to hold it against the true owner, and the true owner has as against the receiver the same remedies that he would have against any other individual who had come into possession of his property and refused to restore it on demand. There is no express provision of the statute authorizing a person owning property as to which the receiver has acquired possession to maintain a proceeding to require the receiver to deliver possession to the claimant. It is true the receiver is an officer of the court and undoubtedly the court could exercise its jurisdiction over him by compelling him to restore possession of the property that had come into his possession as
Thus we think that the refusal of the court upon the application of a claimant of personal property in the possession of a receiver to require the receiver in a summary manner to deliver the possession of such property to the claimant is not a final adjudication as to the ownership of the property so as to prevent the claimant from maintaining a proper' action for obtaining possession of the property or its value. The usual remedies for a claimant of property held by others are formal actions regulated by thei general principles of the common law. Summary applications to obtain property the title to which is disputed cannot be maintained so as to adjudicate the ownership of the property in question. There was nothing in the order which denied the plaintiff’s application to require the receiver to turn over the property to the plaintiff which determined the rights of the parties to the property or which was an adjudication as to its ownership. The order simply denied
The judgment appealed from must, therefore, be reversed, with costs, the order of the court dismissing the complaint on .the motion for judgment reversed, and the motion for judgment on the pleadings denied, with ten dollars costs.
Laughlin, Scott and Miller, JJ., concurred; Clarke, J., dissented.
Judgment reversed, with costs; order dismissing complaint reversed, and motion for judgment denied, with ten dollars costs.