Owen v. Homeopathic Mutual Life Insurance

10 N.Y.S. 75, 63 N.Y. Sup. Ct. 455, 31 N.Y. St. Rep. 600, 56 Hun 455, 1890 N.Y. Misc. LEXIS 1966

• Court: New York Supreme Court
• Decided: May 26, 1890
• Status: Published

Opinion

Learned, P. J.

It cannot be properly said that there is a “devolution of liability” when a receiver is appointed on the voluntary dissolution of a corporation. He does not become liable for the debts. His duty is to distribute the assets in the manner prescribed by law. Possibly there may be cases where, for the purpose of determining the existence or the amount of a debt, he could be made a party to an action previously pending against the corporation ; though we do not see why, in most instances, those matters could not be determined in the proceeding under the statute in which the receiver was appointed. But, however that may be, in the present case the receiver had advertised for claims under the statute; he had even served the plaintiff and her attorney personally with notice to present their claim; the plaintiff had presented no claim; and the receiver, under the statute, had distributed the assets, reserving only enough to meet his expenses. After all this, the present motion was made. Under these circumstances, it would be unjust, by making him a party to this action, to throw on him the expense of litigation; especially when there are no assets from which to pay the claim, should the plaintiff be successful. The plaintiff urges that the question, how the debt is to be paid, if proved, is not before us; that that need not be determined until the plaintiff shall have succeeded in the action. But, clearly, the only hope of the plaintiff must be, under the circumstances, to compel the receiver to pay from his own funds. On what ground that could be urged we do not know. But at any rate, we ought not to expose the receiver, who has followed the directions of the statute, and has thus discharged his duty properly, to the expense of defending the action, and to the risk of some attempt to make him personally liable. The plaintiff had full notice of the time when claims were to be presented. If she had presented this claim, and any questian had arisen whether it could be passed upon otherwise than in a formal action, she might, at that time, have made this motion. Then the receiver was in possession of funds, and had not made his distribution. But, whatever might have been done at that time, the plaintiff is now too late. The order is reversed, with $10 costs and printing disbursements.