Federman v. Standard Churn Manufacturing Co.

128 A.D. 493, 112 N.Y.S. 834, 1908 N.Y. App. Div. LEXIS 511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1908
• Status: Published

Opinion

Per Curiam :

This action was brought for the sequestration of the property of the defendant, a domestic corporation. A motion was made for an order appointing a temporary receiver upon the complaint alone, unsupported by any affidavit or other evidence. From the order granting such motion this appeal is taken. This court said in Kieley v. Barron & Cooke H. & P. Co. (87 App. Div. 317): “ The court is authorized to appoint a temporary receiver in such an action (Code Civ. Proc. § 1788); but this does not justify the appointment of a receiver as a matter of right upon the bare allegations of the complaint alone. * * * This relief should not be awarded until final judgment, except in a case where it satisfactorily appears that it is essential to the protection of the plaintiff’s rights. There was no proof before the court of the necessity for the appointment of a receiver prior to final judgment. * * * Facts and circumstances with reference to the condition and management of the Corporate affairs, showing the necessity of the receivership pending the action in order to render effectual a final judgment in favor of the plaintiff, should have been shown.” That case was cited with approval in People v. Oriental Bank (124 App. Div. 747).

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with, ten dollars costs, with leave to renew.

Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew.