Motion by a receiver to punish for contempt the plaintiff who had brought this action against the receiver without leave, and to stay the proceedings in such action.

Judgment was obtained in this action by Thomas T. Taylor and another against Samuel Baldwin, and the judgment-roll filed in the clerk’s office of the city and county of New York; and proceedings supplementary to the return of an execution unsatisfied were instituted, and Nelson Smith appointed receiver, April 28, 1860, by a justice of this court, in the city of New York. After his appointment, the receiver instituted a suit to obtain the possession, among other things, of a quantity of jewelry which had belonged to the defendant, and which it was alleged he had transferred to defraud his creditors.

In that suit judgment was rendered in favor of the receiver, under which he came into possession of the jewelry. Subsequently thereto, one George R. Downing, who was not a party to the suit brought by the receiver, claimed that this lot of jewelry belonged to him, and demanded of the receiver, who was in possession, to deliver the same to him. This the receiver declined to do except upon an order of the court. Thereupon Downing made an application to the court in this action, that the jewelry be delivered to him. This application was denied, with liberty to take a reference to ascertain the facts. Downing did not avail himself of the privilege granted by this order, but subsequently, and on December 17,1861, commenced an action against Nelson Smith (who is the same person appointed receiver) in this court, laying the venue in Kings county, to recover for withholding this lot of jewelry. This action was commenced by summons, without complaint and without leave of court. The receiver now moved to perpetually stay Downing’s proceedings in that action, and to punish Downing for contempt.

I. A receiver, from the moment of his appointment, is an officer of the court (Bennett on Receivers, 1; Edwards on Receivers, 3); appointed to receive and hold the things in controversy for whosoever can make out title to it. (Postman a. Mills, 8 Lon. Jur., N. S., 161.) He represents the interests of all concerned. (Idings a. Bruen, 4 Sandf. Ch., 417.)

II. The possession of the receiver, being the possession of the court itself, will not be permitted to be disturbed without special leave. (Angel a. Smith, 9 Ves., 335; Noe a. Gibson, 7 Paige, 513; Brooks a. Greathead, 1 Jac. & Walker, 178; Matter of the N. A. Gutta Percha Co., 17 How. Pr., 549, 553.)

…

Citation profile

How this case has been treated — in progress