In re Commercial Bank

35 A.D. 224

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Follett, J.:

Applications for orders affecting receivers are, in effect, motions in the action in which the receiver was appointed (Rinn v. Astor Fire Ins. Co., 59 N. Y. 143; Matter of Thompson, 10 App. Div. 40; Sm. Rec. § 87), and the character of a motion is not changed by entitling the moving papers “ In the Matter of, etc.,” instead of in the action. An application made on notice for leave to sue a receiver must be made in the judicial district in which the action wherein the receiver was appointed, was brought, or in a county ■ -adjoining the county in which the action was brought. (Code Civ. Proc. §769; Rinn v. Astor Fire Ins. Co., supra; Wilkinsons. North River Construction Co., 66 How. Pr. 423; Attrill v. Rock away Beach Improvement Co., 25 Hun, 376; Attorney-General v. The North America Life Ins. Co., 6 Abb. N. C. 293.) The practice of applying for orders in such cases in districts remote ■ from that in which the venue of the action is laid, in which the :receiver was appointed, cannot be sanctioned, for it leads to great -inconvenience and tends to promote conflicts between the courts of 'the different districts, which should be avoided. If a receiver can be controlled by the courts in a remote part of the State, there is nothing to prevent a motion being made in Hew York to control the action of a receiver appointed in Erie.

If it be conceded that leave to sue a receiver may be granted by the court on an ex parte motion, the case of the respondent is not helped, becaus^ it voluntarily gave notice of the motion and brought the receiver into court, and he was bound to resist the application or suffer default, and so lose his right to review the order. This •order affects a substantial right, and though whether such an order .■should be granted rests largely in the discretion of the Special Term, yet the discretion of that court is subject to review by this •court. (Matter of Duff, 10 Abb. Pr. [N. S.] 416.

The order appealed from should be reversed, with ten dollars ■costs and printing disbursements, and the motion denied, with ten ■dollars costs, but without prejudice to the right to make a new .motion in the fifth judicial district for leave to sue. The motion to dismiss the appeal is denied, without costs.

All concurred, Hakdiit, P. J., not sitting.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, but without prejudice to the right to make a new motion in the fifth judicial district for leave to continue the action. Motion to dismiss appeal denied, without costs.