Burdell v. Burdell

54 How. Pr. 91

• Court: New York Supreme Court
• Decided: October 15, 1877
• Status: Published

Opinion

Westbrook, J.

Examination of the question which this motion involves has satisfied me that the opinion expressed upon the argument, that the relief asked for could not be granted, was correct.

Guernesey agt. Mead (9 Hun, 78) is directly in point. In that case, as in this, it was shown. “ that the defendants were allowing the taxes to accumulate, as well as the interest upon mortgages upon land, and that both of the defendants were insolvent.” The court, however, held section 244 of the Code, upon which the plaintiff relies, must be construed in connection with the Eevised Statutes, which, by section 455 of the same Code, are made applicable to actions concerning real property, and that, therefore, the receiver could not be appointed before judgment.

The case just referred to followed that of Thompson agt. Sherrard (35 Barbour, 593), which is also directly in point.

To grant the relief asked for, the special term would overrule two express general term decisions, one in the first department, and another in the third, and so to do would he a stretch of power most unwarranted.

Ireland agt. Nichols (37 Howard, 222) is a decision of the superior court, and though entitled to respectful consideration, it should not control as against two general, term cases in this court.

The motion must he denied.