GEORGE LANGDON, Plaintiff v. THE NEW YORK BOOK COMPANY, Defendant. In re. JOHN B. ALDEN, Appellant, and GEORGE H. STONEBRIDGE, Jr., Receiver, etc., Respondent.
Contempt of court for bringing an action without leave of the court against its receiver.
The above entitled action was brought in 1889, by the plaintiff, a judgment creditor, for the sequestration of the property of the company-defendant, as provided by section 1701 of the Code. In February, 1889, George H. Stonebridge, Jr., was, by the final judgment, appointed permanent receiver of the corporation, defendant, who, after qualification, applied for and procured from a justice of the Supreme Court, a warrant of arrest against JohnB. Alden, pursuant to the provisions of section 12, part II, *297title I, chapter V, article 8, of the Revised Statutes, which provisions are by law made applicable to receivers of corporations, and Alden was arrested and produced by the sheriff for examination. His motion to vacate the order was denied, and he appealed to the general term of the Supreme Court, and, upon such appeal, the order of the special term, denying his motion to vacate the order, was reversed and the warrant vacated, upon the ground that the allegations of the petition having been made upon information and belief only, they were insufficient to justify the issue of the warrant of arrest. Alden then brought an action against Stonebridge individually in the City Court, alleging that the warrant was void for want of jurisdiction, and that Stonebridge who had caused it to be issued as receiver, was personally responsible in damages. Thereupon Stone-bridge obtained from this court an order requiring Alden to show cause why he should not be punished for contempt of this court for bringing said action in the City Court without the leave of this court, and such proceedings were had upon said order that resulted in an order adjudging Alden guilty of contempt of this court and imposing a fine of $250 and costs. This last order is now presented for review.
Held, That, irrespective of the merits disclosed in the proceedings, such a warrant cannot be granted unless notice of the application for the same be given to the attorney-general of the state, pursuant to the requirements of section 8, chapter 378 of the Laws of 1883, and a warrant granted without such notice is void.
There having been no notice of the application to punish Alden for contempt served upon the attorney-general, the order appealed from must be reversed with costs, with leave, however, to the receiver to renew the motion upon proper notice to the attorney-general.
This motion to punish for contempt, and the order having been entitled and moved in the action in which the receiver was appointed, and that action being one for the sequestration and distribution of the assets of the corporation-defendant, the statute of 1883, referred to, commonly known as the Haggerty Act, applies. That act provides that in all such actions or proceedings a copy of all motions and motion papers, together with a copy of any other application to the court, and of the order or judgment proposed thereon to the court, shall, in all oases, be served on the attorney-general, etc.
Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
Decided May 4, 1891.
Appeal by John B. Alden, from an order of the special term adjudging him guilty of contempt of court for bringing an action without the leave of this court against George H. Stonebridge, Jr., who at the time *298was the receiver of the New York Book Company, appointed by this court.
Dill, Chandler & Seymour, attorneys, and James B. Dill of counsel, for appellant, argued :—
I. The order appealed from is void for want of jurisdiction in the justice either to entertain the application or to enter the order, because, no notice was given to the attorney-general. This fact appears in the recital of the order to show cause, in the direction as to service of the order to show cause, in the two affidavits of service and in the stipulation. There were no proofs of service in the recital of the order adjudging Alden guilty of contempt of court, that show only the appearance of counsel for Alden and of counsel for the receiver. Because such notice was jurisdictional (Whitney v. N. Y. & Atlantic R. R. Co., 32 Hun, 172), the printed case must affirmatively show that such notice was given to the attorney-general. “ Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises, and if .it nevertheless proceeds and entertains jurisdiction of the proceedings, all of its acts are void and afford no jurisdiction to the parties instituting them as against parties injuriously affected thereby.” Fisher v. Langbein, 103 N. Y. 84. The appeal papers do not show such notice because, as a matter of fact, no such notice was given. Such notice was necessary. The motion to punish Mr. Alden for contempt was entitled in the sequestration action in which the receiver was appointed, and this action was an action under the Code of Civil Procedure for the distribution of the company’s assets. (Code, §§ 1794-1896.) The general term, first department, has expressly decided that the Haggerty Act applies to an action under these sections of the Code. Whitney v. N. Y. *299& Atlantic R. R. Co., supra. The Court of Appeals has decided In re Vanamee, 23 N. E: Reporter, 1149, and in 29 State Reporter, 593, that in any proceeding by a receiver, appointed in such an action, notice to the attorney-general is essential to jurisdiction. It was held to be fatal to the jurisdiction of the court in granting a warrant similar to the one obtained in this action upon which the suit is brought. The Haggerty Act (Laws of 1883, chap. 378, § 8) provides : “ That a copy of all motions and all motion papers and a copy of any other application to the court, together with copy of the order or judgment to be proposed thereon to the court in every action or proceeding now pending for the dissolution of a corporation or a distribution of its assets or which shall hereafter be commenced for such purpose shall, in all cases, be served upon the attorney-general.” And it further provides: “Any order or judgment granted in any action or proceeding, as aforesaid, without such service of such papers upon the attorney-general, shall be void.” Laws of 1883, chap. 368, § 8. The general term of the first department has expressly decided that such service is jurisdictional. Whitney v. N. Y. & Atlantic R. R. Co., supra; also, In re Vanamee, supra. Upon the appeal to the general term of the Supreme Court, first department, from the third warrant obtained by this same receiver against Mr. Alden, the court' decided that the Haggerty Act applied to this very action in • the Superior Court,, and that the failure to serve the attorney-general with notice of any motion or application, made the order entered thereon void. This opinion has not yet been reported but was handed down in March, 1891. Under these authorities it is respectfully urged by the counsel for the appellant that the order adjudging Alden guilty of contempt, is absolutely void for want of jurisdiction in the court to grant the order, because the attorney-*300general was not notified. It is fair to say that neither the Stonebridge ease nor the Yanamee case had been reported when Judge Ingraham rendered his decision in August, 1889. Judge Ingraham’s opinion, as to the jurisdiction of the justice to grant the warrant, is overruled by the opinion of the general term (February, 1890) upon an appeal from the warrant in question, Matter of Stonebridge, 57 Hun, 442, and also is in opposition to the decision of the Court of Appeals affirming the decision of the general term, second department, in the Vanamee case (December, 1889) before cited.
II. It was not necessary to apply for leave to bring the action in the city court, because the action was not against the receiver in his official capacity, but was brought against him individually. In urging this view upon the attention of the court, the counsel for the appellant has two objects in view. The first bears upon the point that Alden was not guilty of contempt in following the advice of his counsel in applying for leave, because these authorities bear out the advice of counsel; and second, that Judge Ingraham’s- order was erroneous, because there are no authorities overruling these cases. The suit is based upon the theory that the defendant. Stone-bridge is responsible to Alden upon the ground that he (Stonebridge) had Mr. Alden arrested under a warrant issued without jurisdiction. Stonebridge is sued by Alden in the City Court action upon the "same theory that the receiver Noble was sued by Halliday for assault and battery in arresting him (Halliday) under a similar warrant. Noble v. Halliday, 1 N. Y. 330. The city court action is based upon the principle laid down by the Court of Appeals that where an officer of the court acts without jurisdiction, he is personally liable in damages to the person against whom the process runs. It is a case where the familiar principle is applied that where a receiver is *301sued for his own personal act, which is without jurisdiction, he is personally liable. No claim, is made against the assets of the corporation in the receiver’s hands. No claim is made against Stonebridge as receiver. He is charged as an individual with having Mr. Alden arrested under a process that was totally without jurisdiction; in causing the arrest of Mr. Alden he was a mere trespasser, and stands in the same position as if he had proceeded to the office of Mr. Alden and there personally assaulted him. The judgment, if Mr. Alden recovers one, would not be against Stonebridge in his capacity as receiver, and the execution would not run against the property in Stonebridge’s hands as receiver. Confessedly Stone-bridge as receiver is an officer of the court and entitled to the protection of the court in his official capacity, but the moment that he commits an illegal act such as is claimed by Alden he committed in arresting him without jurisdiction, then the receiver becomes personally liable to Alden in an action against him individually, and leave is not necessary in order to bring such an action. The general rule is stated by High on Receivers, 2d ed., § 254, where he says: “ It is in all cases necessary that a person desiring to bring suit against a receiver in his official capacity should first obtain leave of the court by which he was appointed, since the courts will not permit the position of their officers to be disturbed by suit or otherwise without their consent or permission.” The exception to this rule is stated by Mr. High, at section 257, as follows: “ Notwithstanding the extreme jealousy thus shown by the courts in protecting their receivers against unauthorized interference by suit, such protection will not be extended to acts which are outside and in excess of the functions of receivers, or to matters in which he occupies the attitude of a mere trespasser as dealing with or assuming possession of property which is not em*302braced in his receivership, and when suit is brought against a receiver in another court for acts committed by him as an individual, as for taking and retaining possession of property not pertaining to his receivership and as to which he is a mere trespasser, such action will not be enjoined by the court appointing the receiver and an action of replevin has been maintained for the recovery of such property, although leave of the court had not been obtained to bring the action.” See also, Beach on Receivers, § 660. The rule that leave is not necessary to sue a receiver where the judgment against him is sought to be recovered, not as receiver, but individually, is laid down by this court, Freedman, J., Matter of Platt, 41 N. Y.. Super. Ct. 514. The United States District Court of New Jersey in 1881, Judge Dixon writing the opinion, held that it was not necessary to obtain leave to sue a receiver where the receiver took property as receiver which did not belong to the assets over which he was appointed receiver. He was sued -for trespass, and a motion was made to stay the proceedings and to punish the plaintiff because he had failed to obtain permission to sue the receiver. In re Young, 7 Fed. Rep. 858. The same principle was also decided by the United States Circuit Court in Missouri in October, 1884, in the case of Curran v. Craig, 22 Fed. Rep. 101. This last decision covers the principle involved in this case. The judge who granted the warrant, the sheriff who executed it, the attorney who procured it and the receiver who obtained it, are each of them personally liable, because the warrant was without jurisdiction (Fisher v. Langbein, 103 N. Y. 84); and no leave is necessary to begin suit against the receiver any more than it would be necessary against any of the officers who are concerned in issuing the warrant. The distinction between an action brought against a receiver as a receiver and an action brought against a receiver *303individually for damages is- recognized by the general term of the Supreme Court in this state in the fourth department in the case of Dewey y. Finn, decided in October, 1883. The opinion being by Hardin, Justice. This case is not reported in full except in the 18th volume of the New York Weekly Digest, at page 558. In that case a receiver in supplementary proceedings was appointed and took possession of certain property claimed by a third party. The third party brought an action against the receiver individually seeking to recover against him individually damages for such wrongful taking. An application was made to the special term to punish the plaintiff for contempt of court, and he was adjudged in contempt of court and fined ten dollars, from which order he appealed to the general term. The general term reversed the order, holding, that where a receiver wrongfully takes the property of a third party, a suit may be brought against the receiver individually to recover damages, against him as an individual, and that the plaintiff is not required to obtain leave before bringing such a suit for the reason that the claim is against the receiver individually for wrongful taking; for doing an act outside of his legal authority as receiver, and that the judgment sought to be recovered does not create a lien upon the property under the custody of the court, namely, the property in the hands of the receiver. This case is almost parallel to the present action, and we cannot see how the order of Judge Ingraham can stand under this decision of the general term which does not appear to have been criticised or reversed by any subsequent decision.
III. The warrant obtained by the receiver was void for want of jurisdiction. In Judge Ingraham’s opinion, he has made this issue of law the basis of his decision upon the following ground of reasoning. He says, if the receiver had jurisdiction .to act, then *304his act in obtaining the warrant was within the course of his duty as receiver, and hence, although individually sued, nevertheless, such a suit being based upon a legal act as receiver, would be against the receiver as receiver, and not individually. This really is the issue of law in the City Court case, and the converse doctrine is certainly true, that if the act of the receiver was without jurisdiction, then he is individually liable. We have already said that as to this very warrant the general term has vacated it and set it aside upon the ground that it was issued without jurisdiction, and therefore void. Matter of Stonebridge, 57 Hun, 442. There can, therefore, be no question on this appeal that Judge Ingraham was wrong in saying that the judge who granted the warrant had jurisdiction. This being so, there is no question but that the receiver is liable individually under the decision already cited. Fischer v. Langbein, 103 N. Y. 84.
IV. Because the advice given to John B. Alden by his counsel was supported by accredited authorities and because the matter involved was a mere question of practice, not of disobedience to an order of the court, John B. Alden was not guilty of contempt in not obtaining leave to bring the action against the receiver individually. If the attorneys were wrong in their advice, then the general term of the fourth department was wrong, the United States District Court and the United States Circuit Court were wrong, and so eminent text writers as Mr. High and Mr. Beach had previously fallen into the same error. In the case of Dewey v. Finn, 18 Week. Dig. 558, the Supreme Court, at the special term, upon a similar application fined the party bringing the action $10, although there was no proof in that case that he did so under the advice of counsel. This fine was subsequently set aside and the order vacated by the general term upon, the ground that the action was *305against the receiver individually and not as receiver, and hence was not a contempt because no permission was necessary. The force of this authority at this point is to show that the judge who thought the plaintiff guilty of contempt thought at the same time that $10 was a sufficient fine. See also Power v. Village of Athens, 19 Hun, 170; People v. Cooper, 20 Ib. 486 ; King v. Flynn, 37 Ib. 329. The general term of the third department, November, 1879, in the case of George H. Power against The Village of Athens, passed upon a similar question, Learned, J., writing the opinion.
Straley, Hasbrouck & Schloeder, attorneys, and Charles E. Hughes of counsel, for respondent, argued:—
I. The objection that the order appealed from is void for want of jurisdiction is untenable. It is argued that notice of the application to punish John B. Alden for contempt was not served upon the attorney-general and that the order appealed from is therefore void. (1) The application was not within the Haggerty Act. Laws of 1883, chap. 378, § 8. The motion had no relation to any proceedings for the discovery, collection or distribution of assets; its sole object was to punish the appellant for an unwarrantable interference with the receiver. (2) If it be assumed that by the statute cited service upon the attorney-general of notice of the motion was required, an omission to comply with the provision would constitute either an irregularity or a jurisdictional defect. If an irregularity, and such we conceive it to be (if the case falls within the statute), it cannot be taken advantage of upon appeal. The remedy is by motion to set the order aside. Pitt v. Davidson, 37 Barb. 97; Hooker v. City of Rochester, 12 N. Y. Supp. 671; Hammond v. Morgan, 101 N. Y. 179. (3) If it be treated as a jurisdictional defect, there are two grounds upon which the objection should be overruled. The ree*306ord does not disclose any want of jurisdiction in the court below to make the order in question. It is asserted that the attorney-general was not served with notice of the motion. The court has before it no proof of the truth of this assertion. The record is silent with reference to service upon the attorney-general, and, to overturn the order which the court has deliberately made at special term, this court must assume a fact without any evidence to establish it. Where the existence of the jurisdiction of the court depends upon possible' facts, and the subject matter of the action or proceeding is within its general jurisdiction, its power to act in the particular case will be assumed upon appeal, unless the record contains evidence conclusive to the contrary. The jurisdiction of this court to make the order appealed from, in a case where proper service was made upon the attorney-general, will not be questioned. Such service is a possible fact, and its existence will be assumed to support the action of the court, unless disproved by the record upon which the appeal is made. With reference to the general jurisdiction of the Superior Court, the rule is laid down by the Code of Civil Procedure, § 266. It may be said that this enactment has special reference to the cases specified in the preceding sections, defining the jurisdiction of the Superior Court; but if in a case where the general jurisdiction of the court may be drawn into question its power to act is presumed, and the burden is thrown upon the defendant of affirmatively disproving it, upon the principle of omne majus continet in se minus, there should be a similar presumption in a case admittedly within its general jurisdiction, and- where its power to act depends upon possible facts, of which the record contains no disproof. And, as has been frequently stated by this court, the meaning of the section of the Code to which we have alluded is that the court will presume the existence of the facts *307necessary to confer jurisdiction until the contrary is shown. The objection was not urged below, and it is too late to raise it upon this appeal. The appellant did not challenge the receiver to produce evidence of the fact now alleged as essential to jurisdiction, nor did he produce any proof negativing its power in the premises. It wras assumed by both parties that the court had jurisdiction to punish the appellant for contempt, if it was a proper case for its exercise. The affidavits presented in opposition to the motion dealt, exclusively with the question whether Alden had been guilty of contempt. The receiver was not called upon to furnish an affidavit of service of the motion papers upon the attorney-general, and whether he would have been able to do so is a conjecture upon which this court will not enter; and it was upon the argument for a stay pending this appeal that we learned for the first time that our opponents intended taking the objection now under discussion. The attitude of the parties in the court below supports and strengthens the presumption arising from the fact that the court actually asserted. its power to act, and upon this appeal, in view of the absence from the record of all contradictory evidence, the jurisdiction of the court to make the order must be taken as established. And this course is fully sustained by the authorities. In a case in which the jurisdiction of the Superior Court of Buffalo was in question it was said by the Court of Appeals : “ No question appears to have been made in the Superior Court as to its jurisdiction. The statute creating it declares that its jurisdiction shall be in all cases presumed (Laws 1854, chap. 222, § 1). Under the tenth section of the same act, if this be an action on a contract, and the contract was made in Buffalo, or if the corporation had an agency established for the transaction of business in that city, then jurisdiction did in fact exist. As no question was made upon that *308point at the trial, and jurisdiction was legally possible, it must now be assumed to have existed.” Bidwell v. Astor Mutual Insurance Company, 16 N. Y. 263 ; see also Willits v. Waite, 25 Ib. 577. So where it was urged in the Court of Appeals that the matter was within the exclusive jurisdiction of the United States Courts as courts of admiralty, it was said: “ To the position that the courts of New York have no jurisdiction of this action as being of maritime jurisdiction exclusively, it is a sufficient answer to say that the question not having been raised in the courts below, it cannot now be raised and decided here, and any opinion which we should express upon it would be obiter.” Steers v. Liverpool, N. Y. & Phila. S. S. Co., 57 N. Y. 1. Where the record is silent it will be presumed that a court of general jurisdiction in some way acquired jurisdiction of all the defendants against whom it rendered judgment. City of St Louis v. Lannigan, 10 S. W. Rep. (Mo.) 475.
II. John B. Alden was guilty of contempt of court in suing receiver Stonebridge without leave. (1) The fact that George H. Stonebridge, Jr., is receiver of the defendant corporation is not an issue. This question was not raised below. We refer to it because, upon the application for the last warrant, it was seriously contended in the Supreme Court that the appointment of the receiver was invalid. But this contention was found untenable. Matter of Stone-bridge, Sup. Ct., Gen. Term, Feb., 1891. The receiver’s appointment and qualification cannot be questioned in this collateral proceeding. High on Receivers, § 203 ; Atty.-Gen. v. Guardian Mut. Life Ins. Co., 77 N. Y. 275. (2) The .fact that the suit of Alden v. Stonebridge was brought without leave of Court is not disputed. The question is whether Alden before commencing the action should have obtained the Court’s permission. (3) The action of Alden v. Stonebridge was brought to recover dam*309ages alleged to have been occasioned by an act of the defendant as receiver, and performed in the course of his official duties. The receiver was sued for procuring a warrant to be issued, directing the examination of John B. Alden in relation to the property of the corporation. The warrant was annexed to the complaint. It recites that George H. Stonebridge, Jr., the petitioner, had been duly appointed permanent receiver of the New York Book Company; that he had duly qualified; that there was good reason to believe that John B. Alden had in his possession property belonging to the said Stonebridge as receiver; that property had been concealed, and that John B. Alden could testify concerning such concealment. The application was made by the receiver, as such, for the purpose of procuring evidence as to the whereabouts of the assets which it was his duty to reduce to his possession. The privilege of the warrant was given him in his official capacity, and his application for it was in discharge of,an official duty. The statute authorizing the issuance of the warrant forms part of the article defining the powers of trustees of insolvent debtors. R. S., part 2, chap. 5, title 1, art. 8, §12; 4 R. S., 8th ed., p. 2528, §12. The powers of trustees, and with them the right to apply for the warrant, are given to receivers. R. S., part 3, chap. 8, title 4, art. 3, § 72; 4 R. S., 8th ed., p. 2682, § 72 ; Code Civil Pro., § 1788. (4) It is a contempt of court to sue its receiver without leave, and this rule extends to cases where it is sought to hold the receiver personally liable for wrongs alleged to have been done by him to third persons in the course of the performance of his duties as receiver. The receiver is an officer of the court. In the administration of the estate confided to his care he is the court’s representative. The court will not permit him to be called to account for any of his acts in the course of the discharge of his official duties, or to be *310vexed or interfered with by litigation, without its consent and until it has had an opportunity to ascertain whether there is a just ground for the proposed proceeding, and to, determine in what tribunal it shall be prosecuted. “Courts of equity are so jealous of permitting any unauthorized interference with their receivers, that, they frequently interpose by injunction to restrain the prosecution of actions against them when leave of court has not first been obtained.” High on Receivers, §2,56. See also, De Groot v. Jay, 30 Barb. 483; James v. James Cement Company, 8 St. Rep. 490; Searle v. Choat, L. R., 25 Ch. Div. 723. And if the receiver is sought to be held for an act done in the discharge of his duties as such, the case is within the rule, although the action is not brought against him in his official capacity. Taylor v. Baldwin, 14 Abb. Pr. 166. These general rules, which we presume will not be questioned, have equal application where it is sought to hold the receiver personally liable, for a wrong, if it be one committed in the course of his official duties. The doctrine is thus stated by the United States Supreme Court. Davis v. Gray, 16 Wall. 203; Barton v. Barbour, 104 U. S. 126. So in an action of claim and delivery. Miller v. Loeb, 64 Barb. 454. And the same rule has been applied by the United States Circuit Court in an action against a receiver of a railroad for injuries resulting in the death of the plaintiff’s intestate. Kennedy v. I. C. & L. R. Co., 3 Fed. Rep. 97. The obvious distinction is between cases in which the act is outside the scope of the receivership, and relates to acts performed outside the official duty, and in which the receiver is sued as an individual trespasser, and cases where, although the suit sounds in tort, the wrong, if any, has been committed in the performance of his duty, and while engaged in an effort to properly administer the trust committed to him.
*311But in every ease the court will insist upon its right to determine not only whether a separate suit may be brought, but in what court it shall be prosecuted, and usually it will prohibit a resort to any other tribunal. “ As a general rule leave will not be granted by this court to sue a receiver appointed by its authority, in any other tribunal; it is only when special facts and circumstances are shown to exist to render a departure from the regular course and practice of the court advisable, that such leave is given.” In the Matter of the Application of Platt, 41 Super. Ct. 513. (5) The receiver applied for the warrant for the purpose of obtaining a discovery of assets which should come into his possession, and any judgment against him growing out of the invalidity of the warrant would be payable out of the trust property. It is obvious that the receiver would be entitled to charge against the estate any sums, which might be recovered against him in the action brought by John B. Alden. There is no allegation in the complaint charging bad faith. The cause of action is based upon the fact that the warrant was issued upon the receiver’s application, that the appellant was arrested, and that the warrant was vacated. The' receiver had been informed that large assets were concealed ; that John B. Alden, who had previously managed the corporation, could give valuable information which would lead to their discovery. It was the duty of the receiver to invoke the privilege conferred by statute, and to endeavor to ascertain the whereabouts of the property in order that he might take proper steps to reduce it to his possession. If the case were one of neglect on the part of those representing the receiver in preparing insufficient papers, it would be a fault for which the receiver would not be held personally liable, but would be permitted to charge whatever recovery there might be had upon the assets which might *312come into his control. Where a receiver, in the discharge of his duty, injures others through the neglect or misconduct of his servants or agents he is not personally liable, and if a recovery is had in an action founded upon the wrong, it must be payable out of the funds in his' hands as receiver. This rule has been applied in an action for negligence brought against a receiver managing a railroad placed in his charge, where the injury has been occasioned through the fault of those employed by him. Camp v. Barney, 4 Hun, 373; see also Hall v. Smith, 2 Bing. 156. These cases are cited approvingly by the United States Supreme Court in Barton v. Barbour, 104 U. SD. 126; Cardot v. Barney, 63 N. Y. 281. In Camp v. Barney, supra, where it was sought to hold the defendant personally liable for negligence occasioning personal injury to the plaintiff in ' the course of his administration of the estate, it was held that the action should be so mended as to “make the judgment against the defendant as receiver, and to limit the recovery as above stated.” See also McNulta v. Ensch, 24 N. E. Rep. (Ill.) 631; Davis v. Duncan, 19 Fed. Rep. 477. But in this case there was no neglect. The history of the warrant negatives such a conclusion. The warrant was vacated because certain allegations were upon information and belief; the receiver’s attorneys, however, had a precedent in favor of the sufficiency of such allegations, under the statute in question. Noble v. Halliday, 1 N. Y. 330. The important point is the nature of the act which was the occasion of the alleged injury, and that having been found to have been done without bad faith, in the proper discharge of his duties a,s receiver, and the latter having been guilty of no personal negligence or misconduct, he is entitled to the protection which is a necessary incident to the office with which he has been invested.
*313James C. Murray, for plaintiff.
Charles F. Taber, attorney-general of the State of New York.