Straus v. O'Brien
206 A.D. 680
| N.Y. App. Div. | 1923

Order appointing receiver reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The moving party, who *681entitles himself as plaintiff, when it clearly appears that no action has been commenced by him against the person whom he names as defendant, has adopted an unprecedented practice. He may have been entitled to a receiver in supplementary proceedings had he commenced such a proceeding. By the order appealed from there is an interference with the administration of the decedent’s estate, which is not permissible in the absence of a charge of misconduct or fraud or danger of loss, and even in that event an application to the Surrogate’s Court wherein the estate is being administered should afford ample relief. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur.