Opinion
05-22-1907
STRAUSS et al. v. CASEY MACHINE & SUPPLY CO. et al.
M. T. Rosenberg, for complainants. O. B. Gould, for defendants.
Bill by Simon Strauss and others against the Casey Machine & Supply Company and others. On exceptions to the master's report on receiver's accounting. Exceptions sustained.
See 60 Atl. 402.
M. T. Rosenberg, for complainants. O. B. Gould, for defendants.
MAGIE, Ch. 1. The exception to the master's finding as to the amount claimed by the receiver for his personal expenses is overruled, and the master's report on that subject is confirmed.
2. The master's report allowing the payment by the receiver of counsel fees to Pierre M. Brown, his counsel in the state of New York, was correct, and the exception thereto is overruled.
3. The master's report that the receiver should not be held for uncollected book accounts of the company was also correct, and the exception thereto is overruled.
4. The only question on which I have entertained any doubt is whether the master's report that the receiver should not be dischargedshould he confirmed. The reason on which the master bases this conclusion is that the case shows that the receiver did not make such effort as he ought to have made to enforce the liabilities of certain stockholders for amounts unpaid on their stock. I have reached the conclusion that the master erred in thus reporting.
In the first place, the person who seeks to hold the receiver for this alleged failure of duty is the personal representative of a stockholder now deceased, who was himself a delinquent. Neither the deceased stockholder, nor his representative, has paid to the receiver the amount unpaid on his stock. In the second place, I think the receiver has performed his duty in this respect. An order of this court expressly directed that suits against stockholders for deficiency in payment for stock should be "held in abeyance" until the determination of other suits against purchasers. Thereafter the receiver reported to the court that one of such suits was still pending and undetermined, and he suggested whether there should not be made an order that he should proceed to collect the sums due from stockholders. The matter was thus brought to the attention of the court, but no order was made thereon. Admittedly the receiver could not proceed to enforce such liabilities by suit without an order of this court.
I am bound to assume that my predecessor, in refraining from making the order suggested, adjudged that it was improper or unnecessary to do so. No subsequent order has been made, and none is now asked. In my judgment, the receiver is not chargeable with any neglect of duty. There is nothing to show that a direction to bring such suits would be of any avail.
For these reasons, the exception under consideration must prevail, and the report on this subject must be disapproved.