
    Lucius H. Townsend, Plaintiff, v. The Oneonta, Cooperstown and Richfield Springs Railway Co., Defendant.
    (Supreme Court, Otsego Special Term,
    August, 1903.)
    Jurisdiction to appoint a temporary receiver of a corporation — Service of motion papers on Attorney General and appearance for him.
    Jurisdiction to make an order appointing a temporary receiver of a corporation is conferred, so far as relates to the Attorney-General, where a deputy has admitted at his own private residence due, timely and personal service of the motion papers and an attorney has appeared for the Attorney-General on the motion, and this although the appearance of the attorney was not authorized by the Attorney-General and he had given his deputy no authority to sign the admission of service when absent from the office of the Attorney-General in the Capitol.
    The order made cannot be disregarded or attacked collaterally •and the only remedy of the Attorney-General, if aggrieved, is to move to vacate it.
    Service of papers upon a deputy at a place other than the office of the Attorney-General is irregular.
    Motion by the Attorney-General to vacate an order appointing a receiver of the defendant. At a Special Term held July 4, 1903, papers were presented in a judgment creditor’s action for the appointment of a temporary receiver of'the defendant railway company. The judgment creditor and the company were represented by counsel and a responsible attorney appeared for the Attorney-General. Among the papers filed was the following admission of service indorsed upon the order to show cause, and the papers upon which it was founded: “ Due, timely and personal service of the within is hereby admitted. Appearance waived, John Ounneen, Attorney-General, by James E. Eafter, deputy.” Thereupon an order was made appointing a temporary receiver, who immediately qualified and gave the bond required and took possession of the road and has continued to operate it since.
    July seventeenth the second deputy attorney-general applied for an order to show cause why the order thus granted should not be vacated, upon the ground of irregular service of papers upon the Attorney-General and the unauthorized appearance of counsel for him. The moving papers consisted of the affidavit of the second deputy to the effect that no deputy, as such, had authority to sign the Attorney-General’s name to an admission of service of this nature outside of the Attorney-General’s office. It also appeared by the affidavit of the deputy who had admitted “ due service” in the name of his principal, that the papers were served upon him at his home in Mohawk, and that he had not authorized any one to represent the Attorney-General at the hearing. He, however, failed to state in his affidavit that he had signed the Attorney-General’s name without permission or authority. On the hearing of the order to show cause why the order of July fourth should not be vacated, the court required counsel to file the affidavit of the Attorney-General to the effect that the deputy had used his name without permission or authority as a condition for granting relief. Thereafter the Attorney-General made and filed an affidavit in which he stated that “ I did not give Mr. Eafter authority to sign an admission of service of papers when absent from the office of the Attorney-General in the Capitol.” Thereupon the hearing of July fourth was reopened and the Attorney-General permitted to be heard upon the merits. L. 1883, ch. 378, § 8, entitles the Attorney-General to notice ofsthe appointment of a receiver of a corporation. Further facts appear in the memorandum.
    George F. Slocum, Deputy Attorney-General, for motion.
    A. R. Gibbs, Alva Seybolt and A. M. Sanders, opposed.
   Mattice, J.

The appearance by a responsible attorney for the Attorney-General, and the filing of a written admission of service in the name of the Attorney-General by his deputy conferred jurisdiction upon the court, although the appearance was unauthorized and the deputy exceeded his authority in the use of his principal’s name. This is so upon grounds of public policy, otherwise the court would never know when jurisdiction was obtained, unless the present practice of recognizing the authority of counsel, upon his appearance in court, should be superseded by a rule requiring all attorneys to furnish, under oath, satisfactory and sufficient evidence of authority.

The order thus made upon such unauthorized appearance could not be disregarded or attacked collaterally. The direct motion in the action made by the Attorney-General for relief is, therefore, the only resort. ITpon the hearing of this motion to vacate, it is shown to my satisfaction that the attorney appeared without authority, and I am satisfied that service upon the deputy attorney-general at a place other than the Attorney-General’s office is irregular. The Attorney-General would, therefore, be entitled to an order vacating the previous order or to have the hearing opened and he be given an opportunity to defend upon the merits, but for the fact that upon the record stands the admission in the name of the Attorney-General of the “ due, timely .and personal service ” of the papers. The irregularity in the service of papers is thereby waived, and it is of no moment that .an attorney without authority had his formal appearance noted upon the hearing. If the Attorney-General shall choose to file and serve his affidavit to the effect that he disaffirms the act of his deputy in signing his name, and that such act was without his permission and authority, the hearing upon the motion for a receiver made July fourth may be opened and the Attorney-General permitted to be heard upon the merits of the application.

As the receiver has already qualified, giving the bond required, taken possession of the assets of the defendant, brought an important suit affecting the title to a large number of bonds and is operating the road, I do not deem it whe to vacate the order appointing him and renuire the plaintiff to bring proceedings de novo, I conclude that the rie-hts of all parties can be protected by opening the original hearing.

Ordered accordingly.  