53 N.Y.S. 852 | N.Y. Sup. Ct. | 1898
On January 5, 1898, the defendant, an insolvent corporation, made a general assignment of its property for the benefit of its creditors, without preferences, to Charles E. Hotchkiss; which assignment was on the following • day duly recorded. The assignee accepted the trust, and on the 15th day of January took possession of the assigned property and subsequently gave and filed the proper bond as such assignee. On January 21, 1898, an action to dissolve the corporation was commenced, and on February 28, 1898, a judgment was'entered dissolving the corporation and appointing Alfred McIntyre permanent receiver. On March 2, 1898, the receiver’s bond was filed, and thereafter he demanded of the assignee possession of the assigned property, which was refused.
I think that the real question here presented for determination is, whether or not the, receiver has title superior to that of the assignee, to the property which passed into the possession of theassignee under the assignment. But for the appointment of the receivéi', there could be no question of the validity of the title of the assignee. He derived his title from an assignment valid at common law. Vanderpoel v. Gorman, 140 N. Y. 568. The only statutory restriction now existing upon the common-law right of a corporation to" make an assignment is, that it shall be without preferences. Croll v. Empire State Knitting Co., 17 App. Div. 284. I think it cannot be questionéd that the assignee, under the assignment, acquired absolute title to the property. Was he divested of this title by the subsequent appointment of a receiver?. The answer to this question depends upon the statute under which the receiver was appointed and from which alone his powers are derived. A permanent receiver has the powers conferred upon a receiver -appointed upon the, voluntary dissolution of a corporation (Code -of Civ. Pro., § 1788), which are the same as those “ com ferred by law Upon trustees to whom an assignment of the estate of insolvent debtors may be made.” R. S.,- part 3, chap. 8, tit. 4, § 68. “ Such receivers shall be Vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required.” Id., § 67. Whether, therefore, the receiver is vested with property belonging to the corporation at' the time of filing the security, or whether his title relates back to the property owned by the corporation at the time o-f the commencement of the action, it is evident that he is not vested, by virtue of the statute, with any property which the corporation had legally disposed of before the commencement of the action., The statute, under which he is appointed and from which he derives his, power, does not confer upon him any such title. The title of the assignee to the property being apparently valid, the remedy of the receiver, if he desires to assail it, is by an action.
The counsel for the petitioner contends that the question presented on this motion is one of administration only, and whether the state has the right in its own way to provide for the administration -of the assets of an insolvent corporation. One way provided
The motion should be denied, without costs.
Motion denied, without costs.
