28 How. Pr. 377 | New York Court of Common Pleas | 1865
This is a very simple matter. The application is the ordinary one of a receiver appointed by the court, petitioning for instructions respecting the management of the estate confided to his care. It might have been made and granted ex parte, although of course the wiser plan was to give notice (and undoubtedly the court would ordinarily require that to be done) to those interested in the estate. Whether, however, objections which may be termed of a technical character, should be entertained, may be a question, but it will not be necessary to consider it. Nor will it be requisite to examine whether, in any case, there would be any, and if so, what force in the objection raised that the attorney for the plaintiffs in the suit appears as attorney and counsel for the receiver. Whether any general practice ever existed, prohibiting such an appearance, or if there did, whether it ought not to be deemed obsolete, since it is certain that for very many years it has been disregarded almost daily, and thus seems to have met with the condemnation of the profession •—and who could avail themselves of the objection, if it be one—are also questions which need not be determined, because it never was pretended that the rule applied to a proceeding like the present. It was only when the receiver was acting adversely to one of the parties, that it has ever been supposed there was any impropriety in employing the counsel of the other. That is not the case here.
It was also urged that this court should not give any directions to the receiver, but should leave it to the supreme court to instruct him. If it were necessary, I think I should have very little difficulty in reaching the conclusion that the suit of Siney against these defendants in the supreme court, in which Mr. Murphy has also been appointed receiver, was a colorable proceeding, not taken with a view to obtain the relief demanded, but with the design to "enable the defendants to escape the consequences of a decision which had been announced in this case. Indeed, Mr. Siney
The petition shows that except by sale, the receiver cannot discharge the liens; that he has no means of the company either for that purpose or to continue its business. One of the counsel for the defendants complained of the receiver for carrying on the business; denied that the receiver had been authorized to do so, and more than hinted a doubt whether the court had the power to confer such an authority. This complaint sounds singular when it proceeds from the counsel of those who attempted to transfer the property of the company to an assignee, and when that assignee had conducted the business for a considerable time. The right of the court to authorize the receiver to continue the business, is however, indubitable, and the cases are numerous in which the power has been exercised both by the late court of chancery and by the tribunals possessing
I shall not stop to inquire whether the receiver has been so authorized in this case, because if he has been, it is clear on the papers before me that the concern cannot, and if he has not been, ought not to be kept going by him. It cannot be because there is a lack of means, and it ought not to be because it is apparent that it is a losing business.
It appears among other things, and is uncontradicted, that the moneys arising from the prosecution of the business are insufficient to defray the current expenses, and that there are no other means of the company to do so; that the United States authorities threaten to distrain for non-payment of revenue tax, and that the landlord of the stables threatens to dispossess for back rent. It is very easy to say, as was suggested on the argument, let the receiver get another stable, or make terms to hire the same premises from the date of his appointment. Even if these things were practicable, only one difficulty would be removed, and moreover, it does not appear how the receiver is to pay the rent either of other or the same premises from the date of his appointment, or any other time. But the landlord of the present premises may decline renting, and it may not be, probably is not, and at all events, without proof, it ought not to be assumed that it is always feasible to obtain premises suitable for stabling so many horses and vehicles. Even if it were proper for the receiver, or for the court to permit him to do so, to endeavor to hire the present stables without the means or the prospect of means to pay the rent, it is not too much to assume that the landlord, under the 'circumstances disclosed in this petition, would decline to let them. Whether the landlord can or not avail himself of the statutory remedy of sum
None of the allegations of the receiver were denied, and I must frankly say, from what has transpired before me on the various motions in this case, I do not see how they could be. But it was suggested that possibly the company would pay the demands. It was not suggested that possibly the company would furnish the money to continue running the line, but had it been, the answers' would be the same as to the suggestion just previously mentioned. If any of the stockholders designed to furnish the means either to run the line or to discharge pressing liabilities, it would have been very easy to have said so, and not leave it to be intimated by way of argument. That they have not done so is very strong proof that they did not and do not intend to do any such thing. The suggestion that possibly the company might furnish the means requires but a single remark. The assignment by the company to Mr. Schell, purported to convey everything it had, and all that was attempted to be assigned has been ordered to be transferred to the receiver. After having parted with everything, it is difficult to imagine where the company will find the means to carry out the suggestions of the counsel. The receiver finding things in this plight, asks the .court Avhat he shall do. The answer is inevitable, “ you must sell.” One of the counsel for the defendants, while not objecting to a sale, argued that I should order a reference to ascertain Avhat should be sold.
I do not see that anything except to create additional charges on the fund, is to be attained by that course. How much the property will produce, and, therefore, supposing that it were unnecessary to sell all, how much would have