52 N.Y.S. 877 | N.Y. App. Div. | 1898
1 agree with Mr. Justice Ingraham that the amount of the receiver’s commission is governed by section 3320 of the Code of Civil Procedure. Section 16 of chapter 8 of part 3 of the Revised Statutes applies only to the receivers specified in that chapter, viz.,
Nor does chapter 378 of the Laws of 1883 apply. It was held in U. S. Trust Co. v. N. Y., W. S. & B. R. Co. (101 N. Y. 478) that this act is applicable only to insolvent corporations, and the true scope of the decision seems to be that it applies only to receivers appointed in bankruptcy proceedings instituted by third parties. At all events, it is clear that, under this decision, the act does not apply to a temporary receiver. It is held that the receivers referred to in section 2 are those treated of throughout the rest of the act, which requires them to file reports of their proceedings, and contains other provisions clearly referring only to permanent receivers.
Heither the provision in the Revised Statutes nor the act of 1883 being applicable, the question of commissions is consequently governed by section 3320 of the Code. The respondent is a receiver of this corporation, and there is no other provision of law specifically prescribing his fees.
I do not think, however, that he is limited to a commission based upon the cash which actually came into his hands. It is well settled, in the case of executors and trustees, that, where the statute allows commissions on all sums of money which they may receive and pay out, they are entitled to such commissions upon the whole amount of the trust estate in their hands. In Wagstaff v. Lowerre (23 Barb. 209, 225, 226) Davies, J., said: “ In reference to them the statute allows commissions ‘on all sums of money’ that they may receive and pay out. (2 R. S. 93.) But commissions on the whole amount
The contrary view seems to be based on the theory that a temporary receiver is not vested with title to any of the property of the corporation. Nealis v. American Tube & Iron Co. (150 N.
Rumsey and McLaughlin, JJ., concurred.
It seems that upon a petition of the majority of the trustees of the Warren E. Smith Company for the voluntary dissolution of said corporation, an order to show cause why the said corporation should not be dissolved was granted on the 3d of September, 1897, and upon the same day an order was entered, upon motion of the petitioners, appointing a temporary receiver of the corporation. The temporary receiver duly qualified and took possession of the property of the corporation on the 8th day of September, 1897; and on the 18tli day of October, 1897, upon motion of the corporation, with consent of the creditors, stockholders and directors thereof, an order was entered discontinuing the proceedings, vacating the order to show cause and the order appointing the temporary receiver, and directing the temporary receiver to turn over and deliver to the corporation all the property and assets of the said company that came into his hands as said receiver, upon the giving to the said temporary receiver a bond of the amount of $3,500, with the condition that the said corporation should pay to the said receiver the sum or sums allowed him as fees and commissions, said receiver’s counsel fees, and other expenses of the receivership, and directing the receiver to file his accounts, and appointing a referee to pass upon the same.
The temporary receiver filed his accounts, and the corporation filed objections to it, which objections were considered by the referee, who thereafter filed his report; and from the order confirming that report this appeal is taken. By consent of counsel three questions were submitted to the referee: First, as to the amount of compen
1. As to the receiver’s compensation. The receiver was appointed under section 2423 of the Code of Civil Procedure. It is there provided that “ the court may at any stage of the proceeding * * * appoint a temporary receiver of the property of the corporation, which receiver shall have all the powers and be subject to all the duties that are defined as belonging to temporary receivers appointed in an action, in section one thousand seven hundred and eighty-eight of this act.” Section 1788 provides: “A temporary receiver has power to collect and receive the debts, demands and other property of the corporation; to preserve the property, and the proceeds of the debts and demands collected ; to sell or otherwise disjDOse of the property as directed by the court; to collect, receive and preserve the proceeds thereof, and to maintain any action or special proceeding for either of those purposes.” As no further powers were conferred on this temporary receiver by the court, his power and authority over the property of the corporation is limited by this provision of section 1788 of the Code. Under that section I do not think that the title of the property of the corporation vested in the receiver. He had power to collect and receive the debts, demands and other property of the corporation, and to preserve the property and the proceeds of the debts and demands collected ; but his power to sell or otherwise dispose of the property was limited to such direction as the court should give, and without the direction of the court he had no power to sell the property. His duty is essentially that of preservation, rather than that of disposition, of the property. Possession, but not the legal title, was necessary for preservation. The title of the property remains in the corporation until divested by a sale by the receiver under an order of the court, or the appointment of a permanent receiver upon the dissolution of a corporation by a final order in the proceeding. This proceeding having been commenced as prescribed by the statute relating to the voluntary dissolution of a corporation, the court had
The order dismissing the proceeding required the corporation to pay to the receiver his u fees and commission.” We have first to determine what are his fees and commissions.” I do not think that section 2 of chapter 378 of the Laws of 1883 applies. That is an act in relation to receivers of corporations, and the provisions of section 2 fix the compensation to be paid to such a receiver. It was held in the case of U. S. Trust Co. v. N. Y., W. S. & B. R. Co. (101 N. Y. 483) that this section related only to receivers of corporations appointed under statutory authority where the title to the property is vested in such receivers; that this act of 1883 was an additional regulation, prescribing the rights and duties of receivers of insolvent corporations, and did not embrace all receivers of corporations or corporate property, however appointed, or for whatever purpose the appointment may have been made, and that the compensation of a receiver of the property of a corporation covered by a mortgage under process of forclosure is to be regulated by section 3320 of the Code of Civil Procedure and not by the act of 1883. By section 76 of chapter 8, title 4, 2 Revised Statutes, page 470, it is provided “ such receivers shall, in addition to their actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors or administrators.” This provision, however, does not apply.
Chapter 245 of the Laws of 1880 provides that sections 66 to 89 of chapter 8 of title 4 of part 3 of the Revised Statutes are not repealed, but are made applicable to receivers appointed under section 2429 of the Code. Section 2429 of the Code further provides for the appointment of a permanent receiver by the final order for the dissolution of the corporation, and thus this provision of the Revised Statutes is not made applicable to temporary receivers appointed under section 2423 of the Code. We are referred‘to no other statute regulating the fees of a temporary receiver appointed in such proceedings, except section 3320 of the Code. It is there provided that a receiver, except as otherwise prescribed by law, is entitled, in addition to his lawful expenses, to such commissions, not exceeding
There is nothing to the contrary in the case of Matter of Christian Jensen Co. (128 N. Y. 550), or Matter of Schuyler's Steam Tow Boat Co. (136 id. 170). In the latter case it was held that, upon the appointment of a temporary receiver, the property was in the custody of the court, and that the court had power to prevent any interference with it by any action, or its dissipation and removal by a writ of replevin or attachment, or by libel filed in the United States District Court. In Matter of Christian Jensen Co. (supra) the court, in its opinion, says that the title was in the receiver; but
The total amount of money received by the receiver appears to have been §495.51 of outstanding accounts actually collected, and §83.08 cash on hand at the time of the appointment of the receiver, making the total of §518.54, five per cent of which is §25.93, and the fees allowed to the receiver should be reduced to that amount. We are not concerned on this appeal with the question whether or not the Legislature has provided adequate compensation for receivers in cases of this kind. All we have to do is to follow the provisions of the statute. When a person accepts an appointment as receiver he is, of course, liable to the contingency of the proceedings being discontinued, and his compensation based upon the amount of money he has actually collected during the period he continued as receiver. The statute expressly allows him all the expenses incurred by him in the actual preservation of the property, and he is appointed simply to preserve it, and has no power, unless expressly authorized by the court, either to sell it or make any other disposition of it. If, before any sale is made, the proceeding is discontinued, no greater fee than is expressly allowed by law can be awarded to him.
2. The next question is as to the amount awarded to the receiver as counsel fee by the referee. The counsel for the receiver claimed the amount of §5,000 for services, and the referee awarded him §1,500. The counsel employed by the receiver stated at large the services he rendered. He prepared a petition and affidavit, asking leave for the receiver to pay rent for the premises occupied by the corporation, and which were in turn occupied by the receiver. He attended three or four times at the District Court upon a proceeding of the landlord to dispossess the receiver or the corporation, and advised the receiver that it would be for the interest of all concerned that the merchandise of the corporation should be sold on the premises. He advised the receiver that he only liad power to receive the money and had no power to pay out any sum or to sell anything. He advised and consulted with experts as to the necessity of disposing of the goods, and advised the receiver that proceedings should be taken to obtain leave of the court to sell the stock and
3. Upon the other question presented we agree with the learned court below that the evidence was not sufficient to charge the receiver with the alleged shortage of goods. There is really nothing to show that all the goods that the receiver actually took possession of were not turned over to the corporation upon the discontinuance of the proceedings, except the goods sold by the receiver, for the proceeds of which he is charged.
The order appealed from should be modified by sustaining the exceptions to the report of the referee hereinbefore indicated, and as so modified affirmed, without costs of this appeal.
Order modified as directed in opinion of Barrett, J., and as modified affirmed, without costs of this appeal.