Claim of Guardian Savings Institution v. Bowling Green Savings Bank

65 Barb. 275, 1873 N.Y. App. Div. LEXIS 123

• Court: New York Supreme Court
• Decided: May 5, 1873
• Status: Published

Opinion

By the Court, Ingbaham, P. j.

In this case claims were presented by the receiver of the Guardian Savings Instituti'oh against the receiver of the Bowling Green Savings Bank, and the Special Term ordered the receiver of the Bowling Green Savings Bank to enter into an agreement to refer ; and in'case of a refusal, referring it to some person to settle the form of such agreement, and to cause the receivers to sign the same.

There can be no doubt of the power of the court over receivers appointed by it, to .control them in the settlement of all claims against the property they hold; and, as officers of the court, it is their duty to obey the orders of the court. •' In case of refusal, the court can and ought to remove them.

It is equally the duty of the court, in such cases, to compel a settlement of claims affecting the property, in such way as shall be most expeditious and as will avoid litigation and expense to the fund in charge of the court; and the court possesses full power to order a reference for this purpose, at any time, either with or without the assent of the receivers.

[First Department, General Term, at New York, May 5, 1873.

Ingraham and Davis, Justices.]

It was not necessary, on this motion, that any agreement to refer should be signed, by the parties. The order of reference should be made at once. On the report of the referee, of the facts and evidence, a motion can be made to the court for a final order in the matter.

^ The order appealed from should be modified so as to direct a reference to ascertain the truth of the facts stated in the petition, and how much is due to the petitioners from the Bowling Green Savings Bank, and whether the said petitioners are entitled to any priority in payment over other creditors ; and that he report his opinion with the evidence, to the court, for a further order thereon.

The petitioner may apply to the judge holding chambers, at Special Term, for the appointment of a referee, on five days’ notice. Costs of this appeal to abide the event.