
    In the Matter of the Voluntary Dissolution of the Westchester County Brewery, a Domestic Corporation.
    (Supreme Court, Westchester Special Term,
    September, 1911.)
    Receivers — Administration and management of the property —Payment of claims against receiver or property — Debts created by receiver.
    It is not within the power of the court to authorize the temporary receiver of a corporation appointed in a proceeding for the dissolution of the corporation, for the purpose of raising money to continue its business, to issue certificates of indebtedness which shall be liens upon the real property of the corporation prior to
    the lien of a mortgage given to a trustee to secure the payment of corporate bonds.
    Motion by temporary receiver for leave to issue-certificates to enable him to continue the business of the corporation pending proceedings for its- voluntary dissolution.
    Hay-s, Kaufmann & Lindheim, for creditors.
    Julian'G. Boberts, for creditors.
    Sydney A. Syme, for petitioner.
    Holmes, Bogers & 'Carpenter, for trustee.
   Tompkins, J.

The temporary receiver, appointed in this proceeding, which is for the voluntary dissolution of a private business corporation instituted by the directors thereof, now applies to the court for leave to issue certifioates of indebtedness to enable him to raise money with which to advance to the customers of said corporation the license fees which they are required, to pay to the State Excise Department, to enable said receiver to continue the business of said corporation pending these proceedings, and with which to pay the interest which is past due upon the bonds of said corporation; and the temporary receiver asks that such eertificates of indebtedness be made a first lien upon the property and. assets of said insolvent corporation.

This motion is practically consented to by counsel representing a large number of creditors and bondholders, but is opposed by counsel representing the Empire Trust Company, which is the trustee for the holders of the bonds of the said corporation, and as such trustee has a mortgage upon the real estate of said corporation; and the question now presented is as to the power of this court to issue certificates of indebtedness and make them prior liens to the trustee mortgage. There seems to be no reported decision on the question in'this State.

The court undoubtedly has power to authorize the issuing of certificates of indebtedness by a receiver of a private business corporation, but I have reached the conclusion that the court has no power to make such certificates of indebtedness a lien upon the real property of the corporation ahead of a mortgage which is held by a trustee to secure bondholders.

This motion was argued this morning, and counsel united in asking for an immediate decision, and for that reason I cannot give reasons for my conclusion. I am satisfied, however, that the lien of the mortgage cannot be disturbed or the rights of the bondholders interfered with, or their security lessened by making certificates of indebtedness a prior lien upon the real estate. The decisions in the cases of public service corporations do not apply. I must, therefore, deny the motion for lack of power to grant it, unless the bondholders, or some one duly authorized to act for them, consent to the making of such- an order.

Motion denied.  