128 N.Y. 550 | NY | 1891
On the 10th day of March, 1891, the directors of the Christian Jensen Company (Limited) presented a petition to the Superior Court of the city of New York, praying for a voluntary dissolution of the corporation. As the petition is not contained in the record, we must assume that it was proper in form and substance. In fact, no objection is made that it did not comply with the provisions of the Code relating to the voluntary dissolution of corporations. (§§ 2419 et seq.) Upon the presentation of the petition, the court made an order appointing Isidor Grayliead temporary receiver of all
They now contend that the first order made by the Superior Court, on the tenth of March, did not require, as provided in section 2423 of the Code, all persons interested in the corpora
It, therefore, follows that when this property was attached and replevied on the eleventh day of March, the title was in the receiver, and the property was in the custody of the law, and the court had power to prevent any interference with it in any action and its dissipation and removal by writ of replevin or attachment.
The court had express authority, under section 2423 of the Code, to restrain proceedings in the action in which the attachment was issued. As to the replevin action, if the corporation had been a naked wrong-doer in obtaining or retaining the possession of the appellants’ property, and they had been the absolute owners of the property, they could have replevied it from the wrong-doer before it came into the actual possession of the receiver, and thus into the custody of the court. Even then, after the property had passed with the other property into the actual possession of the receiver, it could not, without leave of the court first obtained, have been replevied from him in an action against him. The only remedy then of the appellants would have been by an action commenced with the leave of the court, or by petition to the court. (Noe v. Gibson, 7 Paige, 513; Riggs v. Whitney, 15 Abb. Pr. 388; Chautauqua County Bank v. Risley, 19 N. Y. 369; Barton v. Barbour,
As to the alleged defects in the order of March tenth, it did, in substance, require all persons interested to. show cause “ why the corporation should not be dissolved.” The title of the order, “ In the Matter of the Application of the Directors of the Christian Jensen Company (Limited) for a Voluntary Dissolution,” showed that the proceeding was for a voluntary dissolution of the corporation, and the order recited that the corporation was insolvent, and it required all persons to show cause why the prayer of the petition should not be granted. Hnder the provisions of the Code, the only prayer to be contained in the petition is for a dissolution of the corporation, and we think the order in substance required the persons interested to show cause why such a prayer should not be granted.
It is also objected that the order is defective for not complying with the provisions of section 2424 of the Code, because it did not require the order to be published, and did not specify the newspapers in which it was to be published. It is. quite true that that is a defect which the parties could have taken advantage of by motion, or in some other way, but it was not a defect which rendered the appointment of the receiver a nullity. Furthermore, the court, having jurisdiction of the proceeding, could make an order as it did, nunopra fame, correcting the formal defects in its order. Such an order was in furtherance of justice, did not interfere with any rights which had accrued, did no harm to any one, and the court was perfectly competent to make it. It is quite trac
Our conclusion, therefore, is that by the order made on the tenth of March, Upon a petition properly presented, the court acquired jurisdiction of the proceeding; that its appointment of the receiver was valid; that the property thus came into its possession, and that it had a right to prohibit an interference therewith in any action thereafter instituted.
The order should be affirmed, with costs.
All concur.
Order affirmed.