This they did not do till Monday, November 1st. Now, while it is true that the possession of the receivers, in the sense that the assets are in the custody of the court, dates from the granting of the order, still the receivers, as officers of the court, authorized to take any action as such, have no power to act till they fulfill the condition imposed on them by the order. In re Christian Jensen Co., 128 N.Y. 550, 553, 28 N.E. 665; Hegewisch v. Silver, 140 N.Y. 419, 35 N.E. 658. Perhaps the point is not vital, because such action no doubt might be ratified by subsequent acquiescence, and Farleigh did not repudiate his talk after he had qualified. As the decree gives authority to the receivers "to demand, sue for, collect, receive, and take into their possession all * * * choses in action * * * and property of every description," I think that their powers were broad enough to authorize their acceptance of this chose in action cum onere, if they chose to do so. Thus the question is this: May a single receiver commit the estate by his several acceptance of such an asset?
" See to the same effect, Matter of Schuyler's Steam Tow Boat Company, 136 N.Y. 169 (revd. on another point, sub nom. Moran v. Sturges, 154 U.S. 256, 283, 284); Matter of Christian Jensen Co., 128 N.Y. 550; Matter of Delaney, 256 N.Y. 315, 319. It may well be urged that when the receiver finally qualified by the filing of a bond and his title related back, in this instance by seeming agreement of the parties to the return date of the subpoena served upon the defendant, that all the incidents of title, including the right of election, should also be related back to the same date. There are some difficulties, however, which militate against such a holding and which we think are determinative at least in this instance.
Prac. Act, ยง 810) as in the case of receivers appointed in proceedings supplementary to execution. ( Matter of Jensen Co., 128 N.Y. 550. ) The language of the two sections is in marked contrast.
When that is done, he can take actual, manual possession of the property, and his title relates back to the time of his appointment. In re Christian Jensen Co., 128 N.Y. 550, 28 N.E. 665." In re Schuyler's S. T. B. Co., 136 N.Y. 169, 32 N.E. 623, 624, 20 L.R.A. 391.
It is generally true that an order appointing a receiver prescribes that a bond shall be filed before the receiver assumes to intermeddle with the property to which the receivership relates, and unless this provision is waived by the court, or by a party in interest having power to dispense with the bond, the receiver, before he undertakes the execution of the trust, must give security. ( In re Christian Jensen Co., 128 N.Y. 550, and cases cited.) But as there was evidence here justifying an inference that the bond had been filed, the point that the defendant could not raise the objection is not involved.
When that is done he can take actual, manual possession of the property, and his title relates back to the time of his appointment. ( Matter of Christian Jensen Co., Limited, 128 N.Y. 550, and cases cited by EARL, J.) In Storm v. Waddell (2 Sand. Ch. 494), it was said that property that was liable to levy under execution at law, could not be levied upon subsequent to an order appointing a receiver, as such order was equivalent to an actual levy upon the property.
Plaintiffs instituted the instant action by service of a summons and complaint, rather than commencing a proceeding pursuant to the Business Corporation Law upon presentation of a verified petition to the court. While the trial court could have directed amendment of the plaintiffs' papers and issued the appropriate orders with regard to publication, service and filing of an order to show cause and verified petition, nunc pro tunc (Business Corporation Law, ยง 1107; Matter of Christian Jensen Co., 128 N.Y. 550), it failed to do so. Accordingly, consideration of the judicial dissolution cause of action was improper (cf. Muller v Silverstein, 92 A.D.2d 455, 456; Matter of Cunningham Kaming, 75 A.D.2d 521, 522).
Not only did the letter provide for future negotiation of Kalikow's fee (see Chisholm-Ryder Co. v Sommer Sommer, 70 A.D.2d 429), but it would have been improper for the parties to enter into an agreement for separate compensation because, as an officer of the court, Kalikow was limited to compensation to be awarded by the court ( Salmon v Schenectady Mason Supply Corp., 278 App. Div. 609; Jamaica Sav. Bank v Florizal Realty Corp., 95 Misc.2d 654). Nor could Litho lawfully have become a mortgagee in possession, since once a receiver has obtained rightful possession of property, the possession is deemed the possession of the court and cannot be disturbed without leave of court ( Matter of Christian Jensen Co., 128 N.Y. 550; Walling v Miller, 108 N.Y. 173; 49 N.Y. Jur, Receivers, ยง 40). The real question is whether there were special circumstances that make it equitable to impose additional receivership expenses on Litho even though the expenses exceed the rent collected (see CPLR 8004, subd [b]; Atlantic Trust Co. v Chapman, 208 U.S. 360; East Chatham Corp. v Iacovone, 25 A.D.2d 622, supra; Title Guar. Trust Co. v Koralek, 247 App. Div. 915).
There is neither allegation nor proof that petitioner obtained the leave of that court to institute this proceeding. In the absence of such permission to sue, the Supreme Court in Queens County lacked jurisdiction to entertain the petition in this proceeding ( Barton v. Barbour, 104 U.S. 126; Matter of Schuyler's Steam Tow Boat Co., 136 N.Y. 169; Matter of Christian Jensen Co., 128 N.Y. 550; Town of Greenburgh v. Shalleck, 247 App. Div. 813; Matter of Frankle, 241 App. Div. 767; Matter of New York Municipal Ry. Corp. v. Holliday, 189 App. Div. 814, affd. 228 N.Y. 561). Ughetta, Acting P.J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.
The substituted referee has been named upon notice with the opportunity to the non-consenting stockholders and directors to make such objection to the referee as they might choose to make. It is undoubtedly true that the proceeding, being purely statutory, is required to be conducted strictly in accordance with the statute. In Matter of Christian Jensen Co. ( 128 N.Y. 550) it is held that the presentation of the petition gives jurisdiction to the court. In Matter of Lenox Corporation ( 57 App. Div. 515; affd., 167 N.Y. 623) the court was declared to have the power to make an order nunc pro tunc, when the order did not recite that insolvency had been satisfactorily shown.