Van Wagenen v. Clark , 29 N.Y. Sup. Ct. 497 ( 1880 )

Barrett, J. :

We think the construction placed by Mr. Justice Lawrence upon chapter 403 of the Laws of 1860, was correct. That act conferred upon the receiver all the rights, power and authority of “ receivers appointed in case of the voluntary dissolution of a corporation.” It was one of those rights to file a bill in the Court of Chancery, or to commence and prosecute an action at law for the recovery of any sum remaining due upon any share of stock subscribed in such corporation. (2II. S., 469, § 69.) Indeed, it was thereby made the duty of the receiver immedAately to proceed and recover such sum, “ unless the persons so indebted shall be wholly insolvent.” Probably the receiver might have instituted an omnibus suit making all creditors and stockholders parties. But he was not bound to do so. The act plainly gives him authority to bring separate suits against each shareholder. Perhaps, in a proper case, he might be directed to consolidate such separate suits, but even that would be attended with embarrassment where the defenses are entirely different. However that may be, there certainly was no good reason, upon the facts of this case, why an injunction should be granted to restrain the prosecution of the receiver’s actions. That officer seems to have acted fairly and discreetly, and for the best interests of all concerned. Then the injunction, claimed could subserve no useful purpose. It would certainly work delay, and might even jeopardize the prospects of ultimate success in securing something for the creditors. Different considerations present themselves when various creditors are seeking to recover from the stockholders their respective claims. Then, under certain circumstances, an omnibus suit might well become a necessity But here, the receiver represents all the creditors. The statute gives him full power to settle all controversies with either the debtors or creditors of the corporation (2 R. S., 469, 470, § 73), and points out the procedure. It also provides for distribution and accounting (Id., 470-472, §§ 79-89). The case, therefore, is not within the principle of Pfohl v. Simpson (74 N. Y., 137). Upon the whole, we are of opinion that the order refusing an injunction pendente lite was right, and should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with $10 costs, and disbursements.