State Bank v. Gill

30 N.Y. Sup. Ct. 410

• Court: New York Supreme Court
• Decided: January 15, 1881
• Status: Published

Opinion

Smith, J.:

A careful examination of the appeal papers has convinced me that the question whether the shares of stock of the Amie Mining Company, in controversy in this suit, are the property of the defendant Andrew W. Gill, or whether, as claimed by the appellants, th'ey belong to his wife, can only be satisfactorily determined by a trial of the action. In that view of the case, the plaintiff, who is a j'udgment creditor of Gill, the husband, and who seeks by this action to reach the said stock and apply it to the satisfaction of his judgment, must be held to have an apparent right to or interest in the stock, within the meaning of section 713 of the Code of Civil Procedure. The stock is in the possession of the defendants, and the moving papers show that there is reasonable ground to apprehend that before the suit can be determined the stock will be removed beyond the jurisdiction of the court, or lost in some adverse turn of the defendants’'affairs. We think the Special Term rightly held that the case is a proper one for the appointment of a receiver.

The fact that a receiver of the property of the defendant Andrew W. Gill, has been .appointed in certain supplementary proceedings, is not a bar to this application, nor does it make it necessary that the same receiver be appointed here. Section 2466 of the Code applies only to supplementary proceedings, and not to actions brought by judgment creditors. The question whether the same or a different receiver should be appointed here was within the discretion of the Special Term.

Order of Special Term affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order appointing receiver affirmed, with ten dollars costs and disbursements.