11 Jones and Spencer's Super. Ct. Rep. 344

ABRAHAM B. CLARK, Plaintiff, v. ABRAHAM BININGER, Defendant.*


In this case an order had been entered directing the receiver of the assets of a partnership to pay a certain sum as allowance to one of the counsel in an action. Such order having been disregarded, a further order was granted, adjudging the receiver in contempt, and directing the payment of said amount as a fine, and in default thereof, imprisonment. Over a year having elapsed since the first *345order, and said sum not having been paid, the court granted the order appealed from (both of the previous orders being still in force), enjoining said receiver from collecting or receiving the moneys deposited in bank by him as such receiver, and restraining and enjoining the receiver of the said bank from paying said sum to the receiver herein, and directing payment to said attorney.

Decided February 4, 1878.

Held, a proper exercise of the power of the court (People v. Rogers,

2 Paige, 103; Oode of Oiv. Pro. § 1241).

Before Curtis, Ch. J., and Freedman, J.

Appeal of Thomas J. Barr, receiver, from an order respecting proceeds of property that came into his possession as receiver and were deposited in the Bowling Green Savings Bank, of which Sheppard F. Knapp, Esq.., is receiver.

James Henderson, attorney, and Henry C. Dennison, of counsel, for appellant, urged :

—I. The court had no power to grant the order of injunction appealed from on the application as made by the respondent. (a.) An order of injunction can only be granted by the court when it appears “from the complaint” that the plaintiff is entitled to a judgment against the defendant, restraining the commission or continuance of which, “during the pending of the action,” etc. (Code of Civ. Pro. § 603). (b.) The respondent presented no complaint, and therefore the granting of the injunction was without authority. Nor was there any action pending, as judgment of discontinuance of this action had been entered long prior to the granting of the same. The order could only be granted “before final judgment” (Code, § 608). (c.) Even a defendant to obtain an injunction order must serve a complaint in the nature of a cross suit (Thursby v. Mills, 1 Code R. 83).

)II. The order appealed from tends to enjoin thpa'ap*346pellant from exercising the duties of his office as receiver. Such an injunction cannot be granted (People v. Sampson, 25 Barb. 254).

III. The order appealed from incapacitates the appellant from complying with the order of April 16, directing payment of the money in question, or purging himself of contempt under the order of August 7,1877. (a.) The order'enjoins the appellant from collecting or receiving moneys deposited by him as receiver in the Bowling Green Savings Bank. How can he then pa> the fine imposed under the order of August 7, 1877 ? The order in effect enjoins the appellant from doing that which he is directed to do under the order of Mr. Justice Sanford.

IY. The respondent is not entitled to both the property and body of the appellant.

George N. Titus, respondent, urged :

—I. This receiver is not “a party aggrieved,” by the order of December 3, 1877, and has no right of appeal therefrom. For that cause, his appeal should be dismissed. He is not a party to this action, nor the representative of .a party. He is the mere instrument of the court (Cory v. Long, 43 How. Pr. 492; Martin v. Kanouse, 2 Abb. Pr. 392; Matter of Bristol, 16 Id. 398). and has no right to be heard upon any point embraced in that order (Tallman v. Hinman, 10 How. 89). “ It is too clear for doubt, that a receiver has no right to inter-meddle in questions affecting . . . the disposition of the property in his hands, or to any extent to be regarded as the representative of any one or more of the parties to the cause” (Matter of Colvin, 3 Md. Ch. Dec. 300, 302, 303).

II. The respondent’s lien upon this reserved property and its proceeds—his right to payment therefrom by this receiver, and his contempt of the court in refusing to make such payment, have been adjudged. A *347sequestration of the reserved property and its proceeds, for which the receiver is accountable, follows of course (People v. Rogers, 2 Paige, 103). The order of August 7, directing his commitment,—which has not been enforced,—constitutes no objection to the order of December 3 (Mumford v. Stoker, 1 Cow. 178; Ontario Bank v. Hallett, 8 Id. 192). Until the respondent shall have obtained satisfaction of his claim, he may pursue every remedy which the law has provided in his behalf.

By the Court.—Curtis, Ch. J.

—Thomas J. Barr, as receiver, was directed by an order of the court, made June 14, 1870, to reserve certain proceeds of the partnership property and effects of the late firm of A. Bininger & Co. to satisfy the lien thereon of the respondent George N. Titus. On April 16, 1877, the receiver was ordered to pay from such proceeds to the respondent $4,254.06 to satisfy the still existing lien thereon to that extent. The receiver disobeyed this order, and has been adjudged guilty of a contempt for refusing to make such payment.

The long delay, and the unauthorized use made by the receiver of these proceeds, and his refusal to account for and pay over the same, as directed by the order of the court, renders it the duty of the court to protect this fund from waste and loss by reason of the unlawful acts of the appellant, who only held it in his official capacity as a receiver appointed by the court.

The order appealed from is a proper exercise of the power of the court to protect this property. Its purpose is to arrest the further waste of the property in this receiver’s possession, or in possession of the corporation with which he has deposited it, or its representative. It is in accordance with the usual course, .and necessary for the protection of property, which the court holds through receivers pending the determi*348nation of the rights of parties and claimants (People v. Rogers, 2 Paige, 103; § 1241, New Code).

There is nothing in the papers that shows that the order appealed from incapacitates or hinders the receiver from complying with the order of April 16, 1877, directing the payment to the respondent of the proceeds in question, or purging himself of the contempt of which he was adjudged guilt, August 7, 1877. The order appealed from was not made until December 3, 1877, and long after such disobedience and adjudication, and was made simply for the preservation and due application of such remaining portion of the fund as had not been drawn out and received by the appellant from the representative of the Bowling Green Savings Bank.

The order appealed from should be affirmed with costs.

Freedman, J., concurred.

Clark v. Bininger
11 Jones and Spencer's Super. Ct. Rep. 344

Case Details

Clark v. Bininger
Decision Date
Feb 4, 1878

11 Jones and Spencer's Super. Ct. Rep. 344

New York



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