Johnson v. Martin

1 Thomp. & Cook 504

• Court: New York Supreme Court
• Decided: October 15, 1873
• Status: Published

Opinion

E. D. Smith, J.

The plaintiff is a receiver appointed by the county judge of Cattaraugus county in supplemental proceedings upon four judgments. The action was brought to set aside transfers of property by the judgment debtor. The action being at issue was tried at the special term, and the plaintiff nonsuited upon the ground that he has not complied with the orders appointing him receiver, by the execution of a bond with sureties. He had executed an obligation in each of said suits in the form of a bond, with one surety and without seals.

It was objected that this was not a compliance with the order appointing him, and the circuit judge sustained the objection and directed a nonsuit.

The appointment of a receiver is perfected by the filing of the order for his appointment with the report of the referee and the security required by such order and report. In this case the order of the county judge required the receiver to execute a bond, with sureties. Ho title passed and no authority as receiver was conferred or existed till the receiver named in the order complied with the order for his appointment. Thompson on Provisional Remedies, 477,480;’ Banks v. Potter, 21 How. 469; Conger v. Land, 19 id.; Voorhees v. Seymour, 26 Barb. 569.

Two sureties, at least, were required by the terms of the order, and it is usual to require two (Edw. on Receiver, 89), but the court may dispense with two and take one. Case of Mechanics’ Fire Ins. Co., 5 Abb. 446. The security is usually by bond. The order required a bond in this case, which meant an obligation under seal. Nothing else is a bond.

The.recéivef in this instance clearly did not comply with the-order, and his appointment, therefore, was not complete, and he had no right to sue.

The nonsuit was properly ordered, and the judgment should be affirmed.

Judgment affirmed.