Opinion
January, 1900.
Samuel H. Guggenheimer, for Henry Weiler, demurrant.
William Marston Seabury (Samuel Seabury, of counsel), opposed.
The alleged fraudulent transfer having antedated the receiver's appointment, there would seem to be no doubt that the action can be maintained in this form (Donnelly v. West, 17 Hun, 564), and I do not think that the plaintiff's standing is affected by the fact that a money judgment for accrued alimony was obtained in the matrimonial action. The plaintiff was not appointed receiver in supplementary proceedings under that judgment, since the judgment was obtained after his appointment, and the allegations of the complaint are only consistent with the fact that the order for the receivership was made in sequestration proceedings. He was "duly" appointed, and this suffices to admit proof of the regularity of his appointment. Beach Receivers, § 698. A receiver in sequestration proceedings, unlike a receiver in supplementary proceedings (Rule 77 of the General Rules of Practice), has not, however, incidental authority to sue, especially when the cause of action is to set aside a transfer of real estate, as in this case, since he can "neither bring nor defend actions * * * except by permission and the direct authority of the court by which he was appointed" (Foster v. Townshend, 68 N.Y. 203, 206), and here the question of the necessity of an allegation that the plaintiff brings this action by leave of the court is raised by the demurrer. Clearly, this right to sue does not fall within the scope of the allegation that the plaintiff was "duly" appointed receiver, for the right is not incidental to the appointment, and the permission to sue, in such a case as this, is at the basis of the claim and is a condition precedent to the right of action in the receiver. Foster v. Townshend, supra; Merritt v. Lyon, 16 Wend. 405. Under these circumstances it must be held that the complaint is defective for a failure to allege that leave had been obtained. Freeman v. Dutcher, 15 Abb. (N.C.) 431; Abbott's Trial Brief on Pleadings, 249, § 287. The cases cited by the plaintiff are found, upon examination, to be distinguishable from the case at bar, because they are founded upon reasons which afford an exception to the general rule. Demurrer sustained, as indicated, otherwise overruled; no costs. The plaintiff to have leave to amend within twenty days.
Ordered accordingly.