
    HAMILTON a. THE ACCESSORY TRANSIT COMPANY.
    
      Supreme Court, First District;
    
    
      Special Term, October, 1856.
    Dissolution of Foreign Corporation.—Appointment of Receiver.
    An application for an injunction and the appointment of a receiver should not be granted unless at least there is the strongest probability that the coilrt will ultimately decide that the plaintiff is entitled to the relief demanded in the complaint, and unless it also appears that the property is in danger of being lost or materially injured or impaired before the full investigation and final determination of the case.
    The fact that there is danger that the property will be “ lost or materially injured or impaired,” is important as the basis of an application for a receiver under section 244 of the Code.
    Application for the appointment of a receiver.
    This action was brought by Jeremiah F. Hamilton in behalf of himself and all other stockholders of the Accessory Transit Company who might come in and contribute, against the Company, and Cornelius Vanderbilt and several others, who were alleged to be officers of the corporation.
    The complaint stated that the Accessory Transit Company was formerly a corporation created by the Government of the State of Nicaragua, having an office within the city of New York. That on-February 18, 1856, the Government of Nica-Tagua made and published a decree, which was set out in a schedule annexed to the complaint, and which was signed by Patricio Rivas, whereby the corporation was dissolved. That, notwithstanding the decree of dissolution, Vanderbilt and the other individual defendants had been since elected president and directors of the corporation, and had possessed themselves of its effects, and were using the same without regard to the decree of dissolution or the rights of the stockholders consequent thereon.
    After some further allegations, the complaint prayed that the corporation be declared to be dissolved and a receiver appointed, that the individual defendants be restrained from parting with the property of the corporation, that an accounting-be ordered, &c., and that the debts of the company be paid, and its property distributed among the stockholders.
    The answer denied that the decree of dissolution of February, 1856, was made or published by the Government of Nicaragua; or that Patricio Bivas had jurisdiction to make such a decree; or that the corporation was dissolved by it.
    The plaintiff now made a preliminary application for an injunction and the appointment of a receiver.
    
      David Dudley Field, for the motion.
    
      Mr. Rapallo and H. F. Clark, opposed.
   Clerke, J.

I do not acquiesce in the opinion expressed by • the counsel of the plaintiff, that if the company has, for any cause, been dissolved by any authority exercising supreme power in. Nicaragua, this application must necessarily be granted. This is an application for an injunction until the trial, and for the appointment of a receiver. These are provisional remedies, in the sound discretion of the court, and should never be granted unless, at least, there is the strongest probability that the court will ultimately decide that the plaintiff is entitled to the relief which he demands in his complaint, and that the property is in danger of being lost, or materially injured or impaired, before the full investigation and final determination of the case.

The judgment demanded by the plaintiff is, that the company be declared to be dissolved. There can, probably, be little doubt that the plaintiff will be able to prove at the trial that Bivas, the provisional President of the Republic of Nicaragua, did, on February 18, 1856, issue a decree declaring this company to be thenceforth dissolved. It is not, however, pretended that this decree was in conformity with the previously established organic laws of the land—that it had even the color of legality, or the sanction of any legislative body or judicial tribunal. It is conceded to be an act of purely arbitrary power, emanating from the absolute will of the individual, Patricio Rivas. How, undoubtedly, if this individual, by a successful revolution, whether by fraud or force or perjury, stealthily or by wading through the blood of his fellow-citizens, subverted the institutions of his country, and on their ruins erected the most absolute despotism, disclaiming emphatically, by the bad, bold act itself, the obligations of law and the restrictions of constitutional government, I should be bound, after his government was recognized by our own, to-consider all his acts valid; but, as far as I can judge, from the history of the events which attended his elevation, there is strong reason to believe that, although his government' was provisional, he was bound by the constitution of 1838, which, like all free constitutions, distributes the different powers of government into executive, legislative, and judicial, assigning to each its proper sphere, and, among other salutary provisions essential to the preservation of political liberty, declaring that the executive power shall never of itself annul corporations. The power to do this is, by article 135, subdivision 18, declared to be a judicial function ; and judicial functions are confined expressly by article 150 to the judicial department. The foreign military adventurers, invited by the democratic party, the friends of this constitution, came avowedly, it is positively alleged, to aid them in maintaining that constitution against the legitimists or aristocratic party, who were desirous of destroying it, and of substituting in its place an aristocratic republic or a monarchy, absolute or limited. It was on this assurance or pretence, there is some reason to believe, that the people submitted to General Walker, and consented to the establishment of a provisional government, with Patricio Rivas at its head. And if this is so, the decree of Rivas, independently of all considerations of its intrinsic injustice, will in due time, I have little doubt, be regarded by our government as an act of the individual Eivas, and a flagrant spoliation of the rights of American citizens. It will be the province of the American government to insist (the interests of so many of its citizens being concerned) that this decree shall be reconsidered; and if the company have done anything deserving of death, that they shall have an opportunity' of being heard, and if sentence should be pronounced against them, that it shall be the result of careful investigation, if not according to the course and practice of regular judicial proceeding. Should this be the case, it appears to me probable, from an examination of the documents before me, that this decree will be revoked by Señor Patricio Bivas himself.

But moreover, when I consider the precarious tenure of his power, I am induced to pause before I grant this application. There is scarcely in the varied and blood-stained history of mankind, a more sad example than Spanish America affords of the instability of power and the fickleness of the multitude when once let loose from traditional respect and reverence for law and custom. In that unhappy country one military adventurer succeeds another in the possession of the supreme power with almost as much rapidity as the fleeting images of the magic lantern. The rule of each successful usurper is notoriously evanescent; what is done to-day will be undone tomorrow—the good accomplished by one will be quickly repudiated by another; perhaps the injustice or tyranny of the despot of this hour will be repaired in the next by his successor ; perhaps among the incessant mutations of political fortune enacted in nicaragua, Bivas has- already vanished from the scene, and his successor is ready to atone for the wrong which the defendants have suffered ; or, if he sustains himself in spite of and in opposition to his former friend, General Walker, now his enemy, he is inclined to restore the charter of the company, and declare his former decree null and void from the beginning.

Besides, admitting an apparent dissolution, however probable, as a historical fact, yet, if no material injury is likely to befall the property before the ultimate decision of the case, the court, in the exercise of a sound discretion, ought not to interfere. This consideration seems to be contemplated by section 244 of the Code, relating to provisional remedies before judgment. It provides that a receiver may be appointed when the property is in danger of “ being lost or materially injured or impaired.” The plaintiff makes no allegation to this effect.

There is not a particle of proof that the property is “ in danger of being lost or materially injured or impaired,” or of beintr in the slightest degree injured or impaired. The plaintiff is the owner of two hundred shares of the capital stock of the company „• he is the only owner who applies for this relief, while the owners of 58,857 shares strenuously remonstrate against it, and express their dissent to this application for the appointment of a receiver in this action, preferring that the affairs of the company shall continue under the present management, unless changed by the votes of a majority of the stockholders.” Indeed, if this application were sanctioned by a considerable number of the shareholders, I should hesitate to grant it at this time, under present circumstances, if opposed by any other considerable number. To grant it may, and in my opinion probably would, eventuate in irreparable injury to the company. The appointment of a receiver would, disturb and derange its present management, would neutralize all the efforts now made for the restoration of its charter, would defeat the plans which the present direction and the great body of the stockholders have in contemplation; and, if the Rivas decree should be soon revoked, and the company reinstated in its former rights, an insuperable obstacle would stand in the way of re-establishing it in its former state. Thus, by granting the application, I may cause an irreparable and extensive injury; while by refusing it, at the most, the injury will be comparatively trivial.

Application denied, with ten dollars costs.  