
    ALEXANDER M. C. SMITH v. THE MANHATTAN INSURANCE COMPANY.
    
      Insolvent corporation—distribution of assets of—when creditor may be allowed to present claim.
    
    Where, at the time of the appointment of a receiver of an insolvent corporation, a suit is pending against it, the plaintiff therein may, at any time before the entry of a final decree excluding all creditors who have not presented their claims, be permitted to come in, prove his claim, and participate equitably in the distribution of the fund still in the hands of the receiver.
    
      Matter of Harmony Ins. Co. (9 Abb. [N. S.], 347) followed.
    But where in such case the receiver had no actual notice of the petitioner’s claim before making the second dividend, and has reserved no fund applicable specifically to the payment thereof, it is error to require him to pay to the petitioner his proportion of such dividend.
    Appeal from an order made at the Special Term, allowing the Milwaukee and St. Paul Railroad Company to make proof of its claim against the defendant.
    
      Thomas H. Hubbard, for the appellant.
    
      C. W. Bangs, for the respondent.
   Opinion by.

Gilbert, J.

Present — Barnard, P. J., Gilbert and Tappen, JJ.

Order modified, and as modified affirmed, with costs.  