¶1I concur upon the ground that upon the record before this court the respondent receiver has no power to sell the lands of the corporation for the purpose mentioned in the order. It is stated in the affidavit of the petitioner respondent that the receiver was appointed by order “ in a sequestration proceeding,” instituted by a judgment creditor, but the order is not in the record. If the so-called order was a judgment in a judgment creditor’s action for sequestration of the property of the corporation, which fact is stated in an affidavit made by the receiver, this application should have been made in the action upon due notice to all parties. The order now before the court for review is entitled in a special proceeding. I find no warrant for such procedure. I think the judgment creditor has a right in a proper action to enforce his judgment against the proceeds of sale of the lands of the cemetery corporation in which interments have not been made. (Real Prop. Law, § 450, as amd. by Laws of 1918, chap. 404.) That there are such lands is conceded. Whether such unoccupied or unused lands are subject to any rights or equities of certificate holders and to what extent they are subject to such rights cannot be determined upon the papers before the court. If there are lands, not so affected, apparently there is nothing in the way of the . *365judgment creditor. But these matters must be determined in an appropriate action. Whether the so-called action for sequestration mentioned in the receiver’s affidavit is such an action cannot be determined upon the papers before the court on this proceeding. The General Corporation Law (Art. 6) provides for such action. It cannot be that the corporation can continue to do business with such a large holding of unused lands and refuse to pay its judgment creditors, or that such creditors must await the convenience of the certificate holders.
¶2Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.