
    (82 Hun, 376.)
    DUNCAN v. GEORGE C. TREADWELL CO. et al.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    Corporations—Receiver Pending Action.
    After a receiver had been appointed in an action by a stockholder against the corporation and some of its directors for mismanagement and waste, a new election of directors was had, and those complained of were removed. Plaintiff did not ask to dissolve the corporation, or distribute its assets. Held, that the receivership could not be continued after such election.
    Appeal from special term, Albany county.
    Action by James R. Duncan against the George C. Treadwell Company and others. From an order denying a motion by F. T. .Herx and others, judgment creditors of defendant corporation, for an order directing the receiver of defendant to pay to the sheriff the amount due on their judgments, said judgment creditors appeal.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Simpson & Werner (Louis Werner, of counsel), for appellants.
    Zeb. A. Dyer, for respondents.
   PUTNAM, J.

If the receiver had been appointed in an action for the dissolution of the George C. Treadwell Company, and the distribution of its assets among creditors, brought by the attorney general or a judgment creditor after an execution had been returned unsatisfied, or in a proceeding for the voluntary dissolution of the corporation, the order from which the appeal is taken would not have been disturbed. Attorney General v. Continental Life Ins. Co., 28 Hun, 360; Woerishoffer v. North River Const. Co., 99 N. Y. 398, 2 N. E. 47. But this was an action by a stockholder against the corporation and two of its directors. Plaintiff alleged waste of assets in consequence of the wrongdoing and mismanagement of said directors and others confederating with them, and a scheme of said persons to wreck the corporation, and asked for an accounting by said directors, that the corporation and its officers be restrained from exercising any of the corporate rights, and for the appointment of a receiver. Plaintiff did not ask to dissolve the corporation or distribute its assets, but commenced the action on the ground of the wrongdoing of the said directora and their confederates, and hence the waste of assets and mismanagement of the corporate business. Since the commencement of the action a new election of directors of the corporation has been had, and the two malfeasant directors removed, and plaintiff and those in accord with him are in control of the corporation. It is hence difficult to see on what ground the receivership continues. Directors against whom no charge is made are in control of the corporation, and, although the action may be continued for the purpose of a judgment against the malfeasant directors, there can be no object in continuing such receivership. The object for which plaintiff obtained the appointment of the receiver has been attained by the voluntary action of the corporation and its stockholders. We are not aware of any statute or law which justifies the continuance of the receivership for the purpose of giving the corporation time to raise money to pay its debts. There seems to be no other reason why there should continue to be a receiver of the George C. Treadwell Company. If the corporation is insolvent and unable to meet its obligations, it should make the application for a voluntary dissolution under the provisions of the statute. We think the papers before us clearly show, assuming that the appointment of the receiver in this action was originally authorized, that the continuance of the receivership is unnecessary and improper. However much we might desire to, under the peculiar circumstances of this case, we cannot properly make use of such receivership for the purpose of giving time to the corporation to meet its obligations. It follows that the petitioners who have obtained judgment against the corporation should not be delayed in the collection thereof by an unnecessary receivership which should not continue. For reasons unnecessary to state, we also think that the prayer of the petitioners should have been granted, although it had not been made to appear at that time that the two malfeasant directors had been removed. See Webster v. Lawrence, 47 Hun, 565. The order should be reversed, with costs, and the motion granted, without costs, permitting the sheriff to proceed and sell the corporate property.

MAYHAM, P. J., concurs. HERRICK, J., not acting.  