Morrison v. Menhaden Co.

New York Supreme Court

Morrison v. Menhaden Co.

44 N.Y. Sup. Ct. 522

DecidedOctober 15, 1885

StatusPublished

This text of 44 N.Y. Sup. Ct. 522 (Morrison v. Menhaden 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

Morrison v. Menhaden Co., 44 N.Y. Sup. Ct. 522 (N.Y. Super. Ct. 1885).

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Opinion

Daotels, J.:

The application was made on the ground that the requirements of chapter 378 of the Laws of 1883, had not been complied with in the proceedings in which the receiver was appointed. But it appeared that notice of the application for the appointment of the [524]*524receiver, together with a copy of the judgment, were subsequently .served upon the attorney general, and an order was thereupon made by the court providing nunc pro tuno for his appointment on the notice so served. It is not necessary to hold that such an order •could be regularly made, where its object is not to correct a mere irregularity, but to supply a jurisdictional defect, for this order from the time when it was made, had the effect of making a valid .appointment of the receiver, and from that time certainly authorizing him to exercise his functions as such an officer.

That was done before any proceedings were taken on behalf of the applicant to set aside the appointment of the receiver. It has been supposed that this order was without effect as long as no notice of •the application was given to this judgment creditor or his attorney. But at the time when the judgment of the applicant was recovered against the defendant, and his execution was issued upon it, the property of the company, which, according to the affidavits, consisted of vessels, was in the custody of the marshal of the eastern district of New York, under proceedings taken for the enforcement of maritime demands, and under those proceedings the vessels were .sold and a surplus realized which was paid into the United States District Court, and by its order afterwards paid over to the receiver. This custody of the property of the defendant prevented its seizure under the execution of the applicant. It was wholly within the jurisdiction and authority of the United States District Court, and was not the subject of seizure and levy under his execution. (Freeman v. Howe, 24 How. [U. S.], 451; The Lottawanna, 20 Wall., 201; Covell v. Heyman, 111 U. S., 176.) The applicant accordingly •acquired no lien upon or interest in the defendant’s property entitling him to notice of the application to legalize and continue the receivership. As a mere judgment creditor having no lien upon the •defendant’s property notice of the application was not required to be given to him, and that was the extent of his relation to the defendant’s property. He has not been in a condition to question the legality or regularity under which the receiver was appointed. Neither did he, in any form, acquire any such interest in the debtor’s property as entitled him to payment out of it, or out of its proceeds, in preference to the rights of other creditors. His remedy was not an application to vacate the order appointing the receiver, but it was [525]*525that of an application for payment of bis demand according to its legal priority out of the proceeds of the defendant’s property, either while they were in the custody of the District Court, or after they passed into the possession of the receiver. (Krippendorf v. Hyde, 110 U. S., 276.)

The order was entirely correct and it should be affirmed, with ten. dollars costs besides the disbursements.

Davis, P. X, and Beady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

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Daotels, J.:

The application was made on the ground that the requirements of chapter 378 of the Laws of 1883, had not been complied with in the proceedings in which the receiver was appointed. But it appeared that notice of the application for the appointment of the [524]*524receiver, together with a copy of the judgment, were subsequently .served upon the attorney general, and an order was thereupon made by the court providing nunc pro tuno for his appointment on the notice so served. It is not necessary to hold that such an order •could be regularly made, where its object is not to correct a mere irregularity, but to supply a jurisdictional defect, for this order from the time when it was made, had the effect of making a valid .appointment of the receiver, and from that time certainly authorizing him to exercise his functions as such an officer.

That was done before any proceedings were taken on behalf of the applicant to set aside the appointment of the receiver. It has been supposed that this order was without effect as long as no notice of •the application was given to this judgment creditor or his attorney. But at the time when the judgment of the applicant was recovered against the defendant, and his execution was issued upon it, the property of the company, which, according to the affidavits, consisted of vessels, was in the custody of the marshal of the eastern district of New York, under proceedings taken for the enforcement of maritime demands, and under those proceedings the vessels were .sold and a surplus realized which was paid into the United States District Court, and by its order afterwards paid over to the receiver. This custody of the property of the defendant prevented its seizure under the execution of the applicant. It was wholly within the jurisdiction and authority of the United States District Court, and was not the subject of seizure and levy under his execution. (Freeman v. Howe, 24 How. [U. S.], 451; The Lottawanna, 20 Wall., 201; Covell v. Heyman, 111 U. S., 176.) The applicant accordingly •acquired no lien upon or interest in the defendant’s property entitling him to notice of the application to legalize and continue the receivership. As a mere judgment creditor having no lien upon the •defendant’s property notice of the application was not required to be given to him, and that was the extent of his relation to the defendant’s property. He has not been in a condition to question the legality or regularity under which the receiver was appointed. Neither did he, in any form, acquire any such interest in the debtor’s property as entitled him to payment out of it, or out of its proceeds, in preference to the rights of other creditors. His remedy was not an application to vacate the order appointing the receiver, but it was [525]*525that of an application for payment of bis demand according to its legal priority out of the proceeds of the defendant’s property, either while they were in the custody of the District Court, or after they passed into the possession of the receiver. (Krippendorf v. Hyde, 110 U. S., 276.)

The order was entirely correct and it should be affirmed, with ten. dollars costs besides the disbursements.

Davis, P. X, and Beady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.

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44 N.Y. Sup. Ct. 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrison-v-menhaden-co-nysupct-1885.

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