29 N.Y.S. 508 | N.Y. Sup. Ct. | 1894
The .warrant was issued upon the ground that the defendant had assigned, disposed of, secreted, and is about to assign, dispose of, and secrete property with intent to defraud its creditors. The motion to vacate was made by one David McClure, as receiver of the defendant, appointed by the court in an action prosecuted by the people of the state to dissolve and wind up the affairs of the corporation, and was based upon the papers upon which the warrant was granted. When the motion was brought to a hearing, the appellant objected, upon the ground that the moving party had failed to show by any legal proof that there had not been an actual application of the attached property, or the proceeds thereof, to the payment of the judgment in the action prior to making the motion, and that he had failed to show that he had any interest in or lien upon the property attached under the warrant. These objections were overruled, and, we think properly; for it appeared by the affidavit of McClure that he was appointed temporary receiver on the 12th day of January, 1893, by the court in the action referred to; that he had duly qualified, by giving the security required by the order, and filing the same in the office of the clerk, with the oath of office required; and that he had ever since acted, and was still acting, as such receiver. Attached thereto was a copy of the order of the court appointing him such
It is also contended that the moving party was guilty of loches. Upon this subject the parties were permitted to present their affidavits,- and although considerable time had elapsed after McClure was appointed receiver, under the facts stated by him, we think there was proper excuse for the delay. We are thus brought to a consideration of the papers upon which the warrant was issued. It appears to have been issued upon the complaint, the affidavit of the plaintiff and of Inman, his attorney. It appears that on the 20th day of June, 1881, Charles Knorr, the plaintiff’s testator, joined the defendant, and had issued to him a certificate of membership in class A, for $2,000, numbered 165, in which the defendant certified that:
“This membership entitles his wife, Louisa, if she survive him,—otherwise his executor or administrator,—upon the death of said Charles Knorr, to such an amount as will equal one dollar collected from each member upon the assessment made for the payment thereof, not, however, to exceed the sum of §2,000; said amount payable within 60 days after satisfactory proof of said death has been received by the association.”
The plaintiff alleges that Charles Knorr died on the 31st day of January, 1892, leaving a last will and testament, which has been duly admitted to probate, and that the plaintiff had been duly appointed administrator with the will annexed by the surrogate’s court of Cattaraugus county. Neither the complaint nor the affidavits make any mention of the wife of the testator; so we are not advised as to whether she is living or dead. If she survived the testator, the money due upon the certificate from the defendant belonged to her, and not to the executor or administrator of the testator. In this respect it is apparent that there was a failure to state a good cause of action. But it may be said that the defendant has ivaived this defect in the papers by resting upon its rights, and permitting the plaintiff to enter judgment. Possibly, this may be true as to the defendant; but McClure, as receiver, represents, not only the defendant, but the creditors as well, and, as such, we see no reason why he may not avail himself of the defect unless he has waived the same because of his loches. But -assuming the papers to be sufficient so far as this question is concerned, we find further trouble in sustaining the attachment. As we have seen, it was issued upon the ground that the defendant has assigned, disposed of, and secreted, and is about to assign, dispose of, and secrete, property with the intent to defraud its creditors. It appears from the affidavits upon which the warrant was