Smith v. Barnum

59 A.D. 291, 69 N.Y.S. 253

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1901
• Status: Published

Opinion

Parker, P. J.:

The appellants claim that the application for a receiver to succeed Prank L. Smith, deceased, should have been made to the county judge of Otsego county, and that he alone has authority to appoint such a successor. They contend that the Supreme Court is without jurisdiction to do so. And they urge upon us that it was only after the successor had been properly appointed by such county judge that he could be substituted as plaintiff to continue this action.

It is true that the appointment of a receiver in proceedings supplementary to execution is a statutory proceeding.. And this matter having been originally instituted before the county judge, he alone could appoint a receiver based upon the proceedings so instituted. But when the receiver so appointed by him had entered upon his duties under such appointment, had become vested with the judgment debtor’s property, and, under the direction of the Supreme Court, had commenced this action to enforce the rights of the creditors at whose instance it had been commenced, I think he became an officer of that court, and upon his death the property which so vested in him became vested in the Supreme Court. (Code, § 2471.) Such being the case, that court had jurisdiction to appoint another agent or representative to act for it in the matter of that trust. The case of Nicoll v. Boyd (90 N. Y. 516, 520) is, I think, authority for this proposition. In principle it presents the same situation that is here presented. There it was held that though the proceeding in which the receiver had been appointed had entirely abated, yet “ the functions of the receiver continued, and upon his death devolved upon the court.” Therefore, such court had authority to appoint his successor. In this case, although the receiver was appointed by a separate tribunal, yet it seems clear that, upon his death, his functions devolved upon the Supreme Court. There was no other tribunal upon which they could devolve, and the title and Rights to the debtor’s property that "had vested in him upon his death must pass to the Supreme Court equally as in the case above cited. Under such a condition no reason is apparent why such court may not appoint his successor to prosecute the action pending to final judgment. I find nothing in the statutes regulating such proceedings which aré in conflict with this conclusion.

The judgment debtor had his day in court upon the question, as to whether a receiver should be appointed. All his rights in that regard were considered and determined by the county judge when Smith was appointed, and now the only question is as to who shall continue and complete the duty of executing a trust concerning property that has become vested in the Supreme Court. The Supreme Court violates no provision of the statutes by assuming to make such an appointment under such circumstances, and I am of the opinion that it had jurisdiction to do so.

In this view of the case the defendant had sufficient notice of the application, and the order appealed from must be affirmed.

All concurred, except Chase, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.