Wilhelm v. Hayman

New York County Courts

Wilhelm v. Hayman

126 N.Y.S. 374

CourtNew York County Courts

DecidedDecember 21, 1910

StatusPublished

Cited by1 cases

This text of 126 N.Y.S. 374 (Wilhelm v. Hayman) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilhelm v. Hayman, 126 N.Y.S. 374 (N.Y. Super. Ct. 1910).

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Opinion

OTTAWAY, J.

A judgment was obtained in favor of the plaintiff and against the defendant in the Municipal Court of the City of Dunkirk. Subsequently supplementary proceedings were instituted, and upon the application of the' plaintiff a receiver of the property of the defendant was appointed by an order of this court. No notice of the application for this order was given the defendant. The reasons stated by the plaintiff in his moving papers for dispensing with notice were not in compliance with section 2464 of the Code of Civil Procedure, and the defendant requests that the order appointing said receiver be vacated. After the service of the notice of motion herein the plaintiff caused to be served upon the defendant’s attorney a stipulation consenting that said order be vacated without costs. The plaintiff also makes a motion for an order discharging the receiver and canceling his bond. Both of these motions came on for hearing at the same time arid place—the plaintiff’s counsel appearing and consenting to the vacation of the order appointing said receiver; the defendant’s counsel appearing and objecting to the relief asked by the plaintiff that the receiver’s bond be cancelled. It was made to appear that the receiver had not been in actual possession of any property of the judgment debtor.

[375]*375The examination of the defendant having been before a referee and the defendant not being without the state, he was entitled to a notice of the application for the appointment of a receiver. Ashley v. Turner, 22 Hun, 226. The plaintiff having asked to vacate this order, and the receiver not having taken in his possession any property of the judgment debtor, the plaintiff was entitled to have the "bond given by the receiver canceled and his sureties discharged. The defendant having appeared and opposed the discharge of the receiver and his bond under these circumstances, he is not entitled to cost.

Let an order be entered vacating the order of this court appointing the receiver herein, and a further order canceling the bond of the receiver and releasing his sureties, without costs to either party as against ■■the other.

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OTTAWAY, J.

A judgment was obtained in favor of the plaintiff and against the defendant in the Municipal Court of the City of Dunkirk. Subsequently supplementary proceedings were instituted, and upon the application of the' plaintiff a receiver of the property of the defendant was appointed by an order of this court. No notice of the application for this order was given the defendant. The reasons stated by the plaintiff in his moving papers for dispensing with notice were not in compliance with section 2464 of the Code of Civil Procedure, and the defendant requests that the order appointing said receiver be vacated. After the service of the notice of motion herein the plaintiff caused to be served upon the defendant’s attorney a stipulation consenting that said order be vacated without costs. The plaintiff also makes a motion for an order discharging the receiver and canceling his bond. Both of these motions came on for hearing at the same time arid place—the plaintiff’s counsel appearing and consenting to the vacation of the order appointing said receiver; the defendant’s counsel appearing and objecting to the relief asked by the plaintiff that the receiver’s bond be cancelled. It was made to appear that the receiver had not been in actual possession of any property of the judgment debtor.

[375]*375The examination of the defendant having been before a referee and the defendant not being without the state, he was entitled to a notice of the application for the appointment of a receiver. Ashley v. Turner, 22 Hun, 226. The plaintiff having asked to vacate this order, and the receiver not having taken in his possession any property of the judgment debtor, the plaintiff was entitled to have the "bond given by the receiver canceled and his sureties discharged. The defendant having appeared and opposed the discharge of the receiver and his bond under these circumstances, he is not entitled to cost.

Let an order be entered vacating the order of this court appointing the receiver herein, and a further order canceling the bond of the receiver and releasing his sureties, without costs to either party as against ■■the other.

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Bluebook (online)

126 N.Y.S. 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilhelm-v-hayman-nycountyct-1910.

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