Horowitz v. Gershman

260 A.D. 879, 22 N.Y.S.2d 946, 1940 N.Y. App. Div. LEXIS 5198

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1940
• Status: Published

Opinion

In a proceeding under section 170 of the General Corporation Law, order directing appellant to turn over to the permanent receiver of the corporation certain moneys alleged to be wrongfully withheld by him reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to the receiver making a new application in accordance with the provisions of the statute. Before an order may be made directing a respondent in a proceeding under section 170 of the General Corporation Law to deliver forthwith to the receiver property allegedly wrongfully concealed or withheld, the court should direct the respondent to appear before the court or referee and submit to an examination concerning the facts recited in the petition. In the instant proceeding this was not done and appellant’s examination before the referee, where he was examined as a witness in a proceeding under section 103 of the General Corporation Law, may not be substituted for the examination required by section 170 of that law. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.