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ed by leave of the court. His seizure'is show cause why an attachment should a contempt of the order of the court, not be issued against Sheriff Young and subjects him and his assistants and others, parties in the writ, and asto punishment and restoration of the

sistants, for contempt of the court, in property.

bringing an action against the receiver, Even though the title of a claimant and interfering with the possession of

may be paramount to that of a re-
ceiver appointed by a court of property in his hands.
equity, yet he will be quilty of con-

Held The possession of a receiver of tempt if he asserts his rights by tak

the property embraced in the order of ing possession, or by instituting an action without leave of the court.

his appointment is the possession of

the court: any attempt to disturb that On the 9th day of June last, at the

possession without leave of the court is intance of bondholders securd by mort

a contempt of the court. gages, executed by the Hancock Steel

A sheriff who seizes goods in possesand Iron Company, the court appointed B. K. Rhodes, Esq., receiver of the sion of a receiver, after notice, is not rents and profits of the mortgage es- protected by the process in his hands, tate, consisting of a rolling mill, rolls, unless it is issued by leave of the court. machine shop and other property. Ow When a party claims title paraing to embarassments of the company, mount to that of a receiver, he must and depression in the iron trade, the apply to the court for leave to proceed, works were not in operation, but fully to assert his right, notwithstanding the equipped for business. There were at appointment of a receiver. the time several rolls for making rail

Where the property is legally in the road iron on the premises. Some of possession of the receiver, it is the duty them were finished, except the groove of the court to protect such possession, which shapes the raiis in manufactur

not only against violence, but also ing railroad iron; others were in the

against suits at law. rough. None of them had been in actual use, but all were made as duplicates

Whereupon it is ordered and adto supply the place of those in use, judged that the defendants pay the costs in case of breaks or other necessity of this rule. Also, that they return for a change.

the said property to the premises

whence it was taken within five days. On the 6th day of January last a writ when possession is fully restored, the of replevin was placed in the hands of receiver is directed to retire therefrom, Sheriff Young, at the suit of Jacob W. in order that the respective claimants Moyer and others, against the receiver. This writ was executed by the sheriff each other. It is further ordered that

may assert their legal rights against against the protest of the receiver, and

no further proceedings be had in the six of the nine rolls were taken and car- suit in replevin. Attachinents ordered; ried away as personal property, which parties to be released on compliance had been sold at constable sale to the with this order. plaintiffs.

Opinion by Elwell, P.J. At the February Term a rule was obtained in behalf of the receiver to

RECEIVER OF NATIONAL BANK Dunning, Edsall & Hunt for respt.
N. Y. SUPREME COURT, GENERAL TERM. Nelson Smith for applt.
FIRST DEPARTMENT.

Held, The receiver was not an officer Ocean National Bank, respt, v. Selah of this or of any other court. He was C. Carll, applt.

a ppointed by the Comptroller of the Decided March 31, 1876.

Currency under section 50 of the NaThe Supreme Court has no jurisdic- tional Currency Act, and as such was tion to direct a receiver appointed the agent or officer of the Comptroller, under Section 50 of the National clothed with the powers and duties Currency act, who is not a party to specially conferred by the act of Conthe record, to pay over moneys in his hands to a judgment crelitor of the gress. bank over which he is appointed ri It seems to us very clear, under the ceiver.

provisions of the act referred to, that Such receiver being under the control no order can be inade by this court diof the Comptroller of the Currency, recting the receiver to pay the costs of such judgment creditor should pre: the judgment against the bank; first, sent his claim to the Comptroller ut because the court has not jurisdiction of the Currency for payment.

Appeal from order of Special Term the receiver in a case in which he has denying defendant's motion that the not been made a party to the record, to receiver of the Ocean National Bank, make such an order; secondly, because (the plaintiff,) pay out of the money in the receiver has no power to pay out his hands the judgment in favor of the the moneys collected by him for the defendants for costs in this action. purpose of extinguishing the judgment,

The action was commenced in this inasmuch as his duty is to pay the same Court by the Ocean National Bank, in into the treasury of the United States, December, 1870, and has been con- subject to the order of the Comptroller. tinued in the name of such bank. On The demand upon him is therefore the second trial thereof, which took nugatory. place December 24th, 1874, the plain

The defendant shonld have presented tiff's comp?aint was dismissed with his claim to the Comptroller of the costs, and judgment was entered against Currency for payment out of the prothe Ocean Naticnal Bank for such ceeds received by him.

We do not intend, in deciding the On the 15th of December, 1871, motion, to determine what power the Theodore M. Davis was appointed by courts may possess if the receiver had the Comptroller of the Currency, under brought the action, or had been made section 50 of the National Banking a party to the record and prosecuted Act, receiver of' said bank, and under the same after his appointment in his that appointment took possession of the own name as such receiver. assets of the bank, and had in his hands The only question now determined is money sufficient to satisfy the judg. that upon the state of facts presented ment. The bank is insolvent. Prior upon the motion, the defendant was

not entitled to the order sought for. to making this motion, the defendant's

The oruer must be affirmed with $10 attorney requested the receiver to pay costs and disbursements. the judgment, which he refused to do Opinion by Davis, P. J.; Daniels The motion was denied.

and Brady, J. J., concurring.

costs.

VOL 2.]

MONDAY MAY 15, 1876.

(No. 14.

NEW YORK WEEKLY DIGEST. 1. That there was no ordinance of

the common council authorizing the

contract, or other proof that defendant MUNICIPAL CONTRACTS. NON- ever authorized the commissioner of APPROPRIATION. IMPLIED public works to make the contract. OBLIGATION.

2. That it was not shown that any

appropriation had been previously made N. Y. COURT OF APPEALS. Nelson, applt., v The Mayor, &c., of covering the expenses contemplated by

the contract. New York, respt.

Upon these two grounds the court, at Decided January, 1876.

the trial, dismissed the complaint. In an action against the City of New York to recover the contract price of

lleld (as to the first objection), That material actually delivered to and as chapter 381, Laws of 1865, as amendused by the defendant, for the con- ed by chapter 551, Laws of 1866, construction of sewers, which contract ferred directly upon the Croton Acquewas made with the Commissioners duct Board the power to contract in of Public Works, in April, 1871, it is no defence that there was no ordi pursuance of law for such materials nance of the common council author- used in the construction of sewers, and izing the contract, or other proof that in such quantities as they might deem the commissioner was authorized by proper, and no action of the common defendant to make the contract.

council was required ; and as this powThat although the contract was illegal

by reason of creating an indebted- er was, by the charter of 1870, transnese beyond what was authorized by ferred to the commissioner of public law, it was competent for the legis- works, the objection was not available; lature to legalize it, and it has been so that the expression “contract in pursulegalized.

ance of law” does not refer to any acIt seems that in case such a contract is tion of the common council, but to the

illegal, that the contractor is not with out his remedy, where the city has manner of making the contract, which received and used the property. In was provided for by section 3, of chapsuch a case there is, independent of ter 381, Laws of 1865. the contract, an implied obligation to As to the second ground of non suit, to pay its value.

llela, That as under the provision This action was bronght to recover a of the charter of 1857, (chap. 446 balance due on a contract for furnish- Laws of 1857) which was in force ing sewer drain-pipes, &c.

when the Act of 1866 was passed, no The contract was made April 29, expense could be incurred unless there 1571, between plaintiff and the com- was an appropriation previously made missioner of public works, acting for covering it, which provision was re-enthe defendant. The materials were acted in the charter of 1870, and was furnished pursuant to the contract, and repeated in the amendments of 1871 accepted and used by defendant to the $ 101, chap. 574, Laws of 1871), amount of $181,835, and the necessary which latter act was in force at the certificates to entitle plaintiff to pay- time the contract in question was exement for $127,284 had been give and cuted, and as by said act of 1866 the $51,550 remained due and unpaid. issue of bonds for the purposes of the The defendants alleged:

act was restricted to $100,000, the con

tract purported to create an indebted ceiver, the appointment takes effect ness beyond what was authorized by from the date of the order ; and law, and was invalid. But that, although

therefore where, after such an order,

and before the receiver so appointed when the contract was made it was

perfected his securities, certuin illegal, because the expense incurred execution creditors who had not rewas in excess of the appropriation, it, ceived notice of the appointment put was within the power of the legislature the sheriff in possession of the goods subsequently to validate it, and that

over which the receiver was appoint

ed: this was done by the act of 1872 ($ 8, Held, That immeiliately on notice bechap. 872), authorizing the comptroller, ing given of the appointment the in addition the amounts authorized by sheriff ought to have been withdrawn. then existing laws to issue bonds to the

This suit was instituted by bill filed amount of $100,000 annually, to be on the 26th of July, 1875, for the purapplied to the payment of “expenses pose of realizing a security consisting in incurred in the construction of sewers part of an unregistered bill of sale of the already built,” &c., and to reimburse trade effects of a printing business. advances made under the said acts of

The plaintiff's were the acting execli1865 and 1866 ; and as before the coin-tors under the will, dated the 31st of mencement of the action the comptroll. January, 1870, of Frederick Howarth er had been authorized to issue bonds Edwards, who died on the 17th of Deto more than the amount necessary to cember, 1872. pay plaintiff's claim, he had a right to

The testator, by a deed of the 1st of maintain his action.

July, 1869, sold the business to the deIt seems, also, that it does not follow fendant for £8,000, together with his that because such a contract was ille interest in the leasehold premises where gal that the contractor is without rem- it was carried on, and the stock-in-trade edy, when the city has received and and effects of the concern; and it was used the property obtained under it. provided that £500 only of the purIn such case, independent of the con-chase money should be paid in cash, tract, there is an implied obligation to the rest, with interest, remaining a pay the value of the property.

charge upon the property. By another Judgment of General Terın affiming deed of the same date a debt of £6,500 a dismissal of the complaint at Circuit also owing by the defendant was made reversed, and new trial granted.

a charge upon the property. Neither of Opinion by Rapallo, J.

these deeus was registered under the bill of Sale Act.

Default was made in payment of the RECEIVER.

interest on these sums, the bill was filed, ENGLISH HIGH COURT OF JUSTICE.

and on the 29th of July, 1875, the CHANCERY Division.

plaintiffs, on an affidavit of service of Edwards v. Edwards.

notice, obtained an order which was Decided December 16, 1875. partly as follows:

“ This court doth order that Charles Where, on motion for a receiver, an Edward Mason, of No. 30, Essex order is made that a named person street, Strand, in the county of Middleon giving security be appointed re-sex, public accountant, upon his giving

security, be appointed to receive the Reeves Lovell for a debt of £419 5s. 3d., rents and profits of the leasehold hered- seized the stock in trade and business efitaments in the bill mentioned, and fects and thereupon the receiver instructto collect and get in the debts now due ed his solicitor to give notice of his claim and outstanding, and other assets, prop- to the goods to the attorneys of the erty, and effects belonging to the busi- plaintiffs in the action, which was done ness in the bill mentioned, and to man- on the following day. age and carry on the said business, and An interpleader summons was then the tenants of the said leasehold premi taken ont by the sheriff, at the hearing ses are to attorn and pay their rents in of which Cleasby, B., barred the claim arrear and growing rents to such re- of the receiver without prejudice to ceiver.

any application to the court, on the “And it is ordered that the plaintiffs ground that the claiin was an equitable and the defendant do deliver over to one. the said Charles Edward Mason all the The sheriff remained in possession till stock-in-trade and effects of the said the 23d of August, when he advertised business, and also all securities in their the property for sale. The plaintiff's or either of their hands for such out-thereupon, on the 25th of August, apstanding estate, and all books and pa-plied to the vacation judge parte, pers relating thereto.

and obtained an order restraining the And it is ordered that the said Chas. sale extending over the 1st of SeptemEdward Mason do, out of the first ber, and on the 14th of September the moneys to be received in respect of the vacation judge made a further order in said rents and debts and effects, pay the the presence of all parties directing the ground or other rents and debts due sheriff to withdraw, on an undertaking and to become due in respect of the by the plaintiffs and the receiver to said business."

deal with property under the direction For twelve months before the insti- of the court. tution of the suit C. E. Mason had super

The receiver completed his securities intended the business on behalf of the on the 25th of August, and this fact plaintiffs and other creditors, and was

was certified by the chief clerk on the accustomed to attend at the business 3d of September. .

The execution creditors now moved premises for a short time on most days. The defendant, however, continued os

that the receiver should be ordered to tensibly to carry on the business, and pay their debt, interest, and costs, out of the same course was pursued after the the moneys of the plaintiffs or the deorder of the 29th of July, 1875, and fendant in his hands; or in the alternano step was taken to give notice to the tive, that they might be at liberty to public or persons dealing with the de- enforce their judgment in the action fendant of the appointment of the re. against the defendant, and that the

sheriff might be at liberty to execute ceiver.

the writ of fi. fa. against the detendOn the 4th of August, 1875, the

ant in due course of law, without resheriff of Middlesex, under a writ of

gard to the plaintiff's mortgages in the fi. fa. issued an action against the de-Dill mentioned; or, as a third alternafendant by Francis Lesiter Soper and tive, that the excention creditors might

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