26 Barb. 55 | N.Y. Sup. Ct. | 1857
The receiver presents Ms claim on two grounds: first, that the first levy was under the
Under the revised statutes a writ of error with sureties and an order of stay, if an execution had been issued, but not fully executed, stayed the further execution thereof. (2 R. S. 597, § 30.) If the execution had been levied but no sale had taken place, it stayed the sale. (Delafield v. Sandford, 3 Hill, 473.) If an appeal were taken and a bond given but not in due form, and leave were given to amend the bond, and then execution issued and was levied, the court, on the amendment being completed, would supersede the execution, thus putting the appellant where he was when the amendment was allowed. (Clark v. Clark, 7 Paige, 607.) If an appeal were taken from a justice of the peace to the common pleas, it released goods levied on, from the lien. But this was by virtue of the express words of a particular statute. (2 R. S. 259, § 192, &c. Wilson v. Williams, 18 Wend. 581.) The code has not the minute provisions of the revised statutes as to the effect of a writ of error or appeal, and security given thereon. It provides, in general terms, that “if the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment unless” an undertaking be given, “to pay the money.” Before the revised statutes, a writ of error did not stay an execution, after levy. (Delafield v. Sandford, supra.) It might be a question whether the language of the code does not restore that law; but a literal construe?
As to the second question. Art. 2, title 4, ch. 8, pt. 3 of
The object of the act is to take away the franchises of the corporation, and its powers of action, immediately on the petition being filed, if the prayer of the petition be finally granted. The comb adjudges that at that time it was insolvent and then unable to pay its debts, and then liable to have all its property pass out of its control into the custody of the court and of a receiver to be appointed by it. Such is declared to have been its condition at that time, and not merely when the final order was made. Accordingly, any voluntary disposition of its property, made after that time, is absolutely void ; and any judgment confessed by it is also absolutely void. Such judgment is not even evidence o'f a debt. Subsequent involuntary judgments may be evidence of a debt, and in that respect 4lone have advantage over a judgment confessed. If they could give a lien on the property they would be a ready means of indirectly preferring favorite creditors; and would thus defeat the object of the law, which forbids such direct preference, and which, by taking away from the company its franchises from the time of the filing of the petition, from that time extinguishes its life and makes it incapable of having a judgment entered against it. The 67th section is not inconsistent with this. It does not profess to pass on the title which creditors of the company may acquire against the company, but is intended to prescribe the period at which the estate of the company shall be vested in the receiver, so that thereafter the debtors of the company may be bound to settle with him alone, and so that after that time, also, he shall be enabled to take the possession, Before that time, the receiver cannot take the possession, or be deemed vested with the estate; as an executor since the revised statutes, and an administrator at all times, is not deemed vested with the estate
The order appealed from should be reversed, without costs, and the receiver be authorized to apply the proceeds of the property levied on under the execution in favor of Bidwell and Banta towards satisfying so much of their judgment as they finally agreed to reduce it to.
MiteheU, Roosevelt and JPedbody, Justices,]