Opinion
December 7, 1917.
John F. O'Brien, for the appellant.
Walter E. Godfrey, for the respondent.
On January 20, 1916, the defendant gave an undertaking for the good behavior for one year of a person convicted in the City Magistrate's Court of disorderly conduct. On May 4, 1916, the bond was forfeited by reason of the misconduct of the person convicted, and on or about September 26, 1916, this action was brought to recover the penalty of the bond.
The defense upon which a verdict in favor of defendant was directed was that on or about April 19, 1916, an order was made in the Superior Court of Cook county, Ill., whereby a receiver was appointed of the defendant, an Illinois corporation. It was claimed by the defendant, and held by the trial court, that by the appointment of the receiver all liability upon the bond terminated upon the day that such appointment was made.
It is sought to sustain the judgment appealed from by the authority of People v. Metropolitan Surety Co. ( 205 N.Y. 136). That case, however, is not applicable. There the corporation had been dissolved. Here there is no allegation or proof of dissolution, merely that what is sometimes called a chancery receiver had been appointed. So far as appears the corporation remains alive. Under these circumstances, the plaintiff is entitled to put its claim in judgment, so that its right may be judically determined. ( Pringle v. Woolworth, 90 N.Y. 502.) The matter of the collection of the judgment is one with which we are not now concerned.
At the conclusion of the trial both sides moved for judgment, thus conceding that no disputed question of fact was involved. We may, therefore, proceed to direct the proper judgment.
The judgment appealed from is reversed and judgment ordered for the plaintiff as prayed for in the complaint, with costs in this court.
CLARKE, P.J., LAUGHLIN, DOWLING and SMITH, JJ., concurred.
Judgment reversed and judgment directed for plaintiff as stated in opinion.