Opinion
December 22, 1942.
The plaintiff, having been appointed receiver in a judgment of restitution, entered in a stockholders' derivative action "to receive, enforce, collect and account for the said judgment" for the benefit of a corporation, instituted this action to set aside alleged fraudulent transfers of stock certificates made by the judgment debtors. The appointment of a receiver in the present action was proper but we are of the opinion that the receivership of the plaintiff could not properly be extended to this action for the reason that it does not relate to the same estate or property. (Rules of Civil Practice, rule 179.) The plaintiff, as receiver of the judgment in the stockholders' action, acts as such in relation to the property of the judgment creditor, and his receivership in this action would relate to the estate of the judgment debtors. Since the receivership of the plaintiff should not be extended, a bond must be executed and filed by the receiver herein. Order modified on the law by striking therefrom the parts which provide that the receivership of Elmer H. Lemon be extended and that a bond be dispensed with; and by inserting in place thereof a provision appointing Elmer H. Lemon as receiver, without any reference to the extension of his receivership in the stockholders' action, and by requiring him to execute and file a bond, the form and sufficiency of which shall be determined and approved by Special Term. As thus modified, the order is affirmed, without costs. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.