Deming v. New York Marble Co.

New York Supreme Court

Deming v. New York Marble Co.

12 Abb. Pr. 66

DecidedDecember 15, 1860

StatusPublished

This text of 12 Abb. Pr. 66 (Deming v. New York Marble Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Deming v. New York Marble Co., 12 Abb. Pr. 66 (N.Y. Super. Ct. 1860).

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Opinion

Hogeboom, J.

—I think the appointment of Green as receiver was regular, and by relation dates back to the period when the order of reference was granted to appoint a receiver. The appointment of Jenkins as receiver, in proceedings subsequently commenced, was improvident if not irregular. In the contest for the possession and control of the assets of the company, I think Green is entitled to precedence, as having by relation received the first appointment, and therefore that the other receiver should surrender to him the assets of the company.

But it is suggested, by affidavit, on the part of the defendants Dwight and Bume, in the Deming suit, that Green is not a suitable person for receiver—has rival interests, which will bring him in conflict with those of the Hew York Marble Company, and is hostile to the parties who are most largely interested in its affairs; that his appointment was made without proper notice to these parties, and when they supposed the matter was still open for examination and the introduction of testimony before the referee. As the case now stands, these affidavits are not answered, and they show a state of facts which the parties interested ought to have some opportunity of bringing to the notice of the court by way of objection to the appointment of Green, if they shall be so advised. To give them an opportunity to do so, I think it proper to postpone for a short time the operation of the order, which must be made, in the present attitude of the case, requiring Jenkins to surrender to Green the assets of the company. This can do no harm, as there is only an insignificant amount of assets in the hands of Jenkins, and the injunction may in the mean time be continued.

The order will, therefore, require Jenkins to deliver over to Green the property and effects of the company on or before the [69]*6915th day of January next, unless in the mean time some other receiver be appointed in the place of the said Green, or some other order be made in the premises. The injunction already granted to be in the mean time continued.

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Hogeboom, J.

—I think the appointment of Green as receiver was regular, and by relation dates back to the period when the order of reference was granted to appoint a receiver. The appointment of Jenkins as receiver, in proceedings subsequently commenced, was improvident if not irregular. In the contest for the possession and control of the assets of the company, I think Green is entitled to precedence, as having by relation received the first appointment, and therefore that the other receiver should surrender to him the assets of the company.

But it is suggested, by affidavit, on the part of the defendants Dwight and Bume, in the Deming suit, that Green is not a suitable person for receiver—has rival interests, which will bring him in conflict with those of the Hew York Marble Company, and is hostile to the parties who are most largely interested in its affairs; that his appointment was made without proper notice to these parties, and when they supposed the matter was still open for examination and the introduction of testimony before the referee. As the case now stands, these affidavits are not answered, and they show a state of facts which the parties interested ought to have some opportunity of bringing to the notice of the court by way of objection to the appointment of Green, if they shall be so advised. To give them an opportunity to do so, I think it proper to postpone for a short time the operation of the order, which must be made, in the present attitude of the case, requiring Jenkins to surrender to Green the assets of the company. This can do no harm, as there is only an insignificant amount of assets in the hands of Jenkins, and the injunction may in the mean time be continued.

The order will, therefore, require Jenkins to deliver over to Green the property and effects of the company on or before the [69]*6915th day of January next, unless in the mean time some other receiver be appointed in the place of the said Green, or some other order be made in the premises. The injunction already granted to be in the mean time continued.

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Bluebook (online)

12 Abb. Pr. 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deming-v-new-york-marble-co-nysupct-1860.