Sandford v. Sinclair

New York Court of Chancery

Sandford v. Sinclair

3 Edw. Ch. 393, 1840 N.Y. LEXIS 335, 1840 N.Y. Misc. LEXIS 30

DecidedApril 22, 1840

StatusPublished

This text of 3 Edw. Ch. 393 (Sandford v. Sinclair) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sandford v. Sinclair, 3 Edw. Ch. 393, 1840 N.Y. LEXIS 335, 1840 N.Y. Misc. LEXIS 30 (N.Y. 1840).

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Opinion

The Vice-Chancellor :

With respect to the propriety of filing the bill in this cause, it stands upon the same footing as the bill of the same complainant against Henry F. Tallmadge, in which I have held it was prematurely filed and, therefore, refused to appoint a receiver and dissolved the injunction.

Another question is presented in this case, as to the regularity of the order of reference to appoint a receiver; the same having been obtained upon an ex parte application. It seems to me that this step is not warranted by what the Chancellor has said in The People v. Norton, 1 Paige’s C. R. 17. The reasons there and the principle on which an ex parte order was in that case made, appear to me not to exist here. And in [394]*394Austin v. Figueira, 7 Paige’s C. R. 58, the Chancellor has laid down the rule that after the time limited by the rules of the court for the defendant to appear and he does not and the bill has been taken as confessed, the application maybe made ex parte.

I see no good reason why this should not apply where the defendant is absent and is obliged to be advertised, unless special circumstances are shown to exist—as in The People v. Norton. In the case before the court, no order has or can at present be entered to take the bill as confessed.

Order: that the order for the appointment of a receiver and all proceedings under it be set aside, with costs to be taxed.

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The Vice-Chancellor :

With respect to the propriety of filing the bill in this cause, it stands upon the same footing as the bill of the same complainant against Henry F. Tallmadge, in which I have held it was prematurely filed and, therefore, refused to appoint a receiver and dissolved the injunction.

Another question is presented in this case, as to the regularity of the order of reference to appoint a receiver; the same having been obtained upon an ex parte application. It seems to me that this step is not warranted by what the Chancellor has said in The People v. Norton, 1 Paige’s C. R. 17. The reasons there and the principle on which an ex parte order was in that case made, appear to me not to exist here. And in [394]*394Austin v. Figueira, 7 Paige’s C. R. 58, the Chancellor has laid down the rule that after the time limited by the rules of the court for the defendant to appear and he does not and the bill has been taken as confessed, the application maybe made ex parte.

I see no good reason why this should not apply where the defendant is absent and is obliged to be advertised, unless special circumstances are shown to exist—as in The People v. Norton. In the case before the court, no order has or can at present be entered to take the bill as confessed.

Order: that the order for the appointment of a receiver and all proceedings under it be set aside, with costs to be taxed.

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Bluebook (online)

3 Edw. Ch. 393, 1840 N.Y. LEXIS 335, 1840 N.Y. Misc. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandford-v-sinclair-nychanct-1840.