
    In the Matter of the Voluntary Dissolution of the Grand Central Bank. Raphael J. Moses, Appellant; Grand Central Bank and James J. Nealis, Receiver of the Grand Central Bank, Respondents.
    
      JSlection to assail the validity of an assignment made by the receiver of a corporation — when it precludes an attack on the validity of the receiver’s appointment.
    
    Where the receiver of a bank, appointed in proceedings for its voluntary dissolution, assigns, pursuant to an order of the court, a judgment in favor of the bank, a stockholder of the bank,, who obtains leave to appear before a referee appointed to determine the rights of parties interested in moneys of the judgment debtor upon which the judgment is a lien, and to test the validity of the. assignee’s title to the j udgment, cannot subsequently — before the referee has. decided the question of the validity of the assignee’s title and without notice to the assignee — attack the validity of the dissolution proceedings and the receivership, when it appears that he had full knowledge of the facts upon which the attack is based at the time he obtained leave to appear before the referee.
    Appeal by Raphael J. Moses from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1899, denying his motion to vacate a judgment dissolving the Grand Central Bank and an order appointing a receiver of its. property and to set aside an assignment executed by such receiver to one Charles E. Sehaffner of certain judgments theretofore, obtained by the bank against James P. Brown.
    
      Raphael J. Moses, for the petitioner, appellant.
    
      Oscar F. Q-. Megie, for the Grand Central Bank, respondent.
    
      George H. Taylor, Jr., for the receiver, respondent.
   O’Brien, J.:

In 1878 the Grand Central Bank recovered four judgments against Thomas E. Eoran and. James P. Brown, and thereafter, in January, 1879, the bank ceased to do business, and under the direction of the banking department paid all its depositors and creditors, and also paid a dividend of thirty per cent to its stockholders. In January, 1894, more than fifteen years after the corporation had ceased to do business, a petition of tfye majority of the directors was. presented and proceedings instituted for the voluntary dissolution of; The corporation, and in December, 1894, an order was entered dissolving the corporation and appointing a receiver.

No service of the application for the dissolution or for the appointment of the receiver' was made on the Attorney-General, which, it is insisted, rendered the proceedings void under section 8 iof chapter 378 of the Laws of 1883.

The receiver was shortly thereafter discharged, but in the order 'discharging him authority was .given to satisfy or assign the judgments in favor of the bank against Thomas E. Eoran and James P. .Brown, these being the only assets except a small sum of money that remained undistributed. Upon representations that these judgments were of no value they were assigned to one Schaffner.

Prior to such assignment, and in . 1886, a decree of partition and sale was entered in the action of Treacy v. Ellis, wherein it was decreed that the judgments against Foran and Brown were liens against the share of Brown in the property to be sold under the decree, and the referee appointed therein was directed to and did deposit with the chamberlain the proceeds of the sale of the share of Brown in the property, there to remain till the further order of ; the court.

Schaffner, upon obtaining the assignment of the judgment, joined -with other creditors of Brown in making a motion for the distribution of the moneys represented in the share of Brown, then in the Bands of the chamberlain, which motion was at first denied, with leave to renew, which latter motion was granted and required that those beneficially interested in the assets of the bank should be notified of the day and time when the order would be applied for -directing a distribution of the share of Brown. Before that date the petitioner here — reciting in his application to the court for leave to be made a party, certain alleged defects in connection with 'the dissolution proceedings, in addition to the failure to serve notice -on the Attorney-General — was given leave to appear before the .referee who was appointed to determine the rights of the parties to the moneys in the chamberlain’s hands to the credit of Brown, and was allowed to submit proof of his interest in the capital stock of The bank.

He appeared before the referee, submitted his proofs, and, though "the reference is closed, no decision .had been reached and the pro«ceeding was pending when this application was made to set aside the order dissolving the corporation.

This petitioner, Mr. Moses, does not appear to have been a stockholder when the bank ceased to do business, and has never appeared as a stockholder in the books of the bank, nor does he say from whom he bought the stock, or what he paid for it. It is, however, fairly to be inferred that he obtained the stock prior to December, 1887, and that at that time the persons in charge of the bank knew -that he claimed to be a stockholder, because lie was paid a dividend as the owner, and holder of 200 shares of the stock of the bank.

Assuming his right, therefore, to be regarded as a stockholder, .notwithstanding that the stock was not transferred to his name in the books of the bank, and to present his petition to the court, he njust, on the other hand, be held bound by the ordinary rules which •are binding upon a person seeking to occupy two inconsistent positions.

In his original petition asking to intervene in the proceedings before the referee upon^the question of the validity of the assignment from the receiver to Schaffner, and the right of the latter to all or some of the share of Brown, he fully set forth all the defects And irregularities in the dissolution proceedings upon which he predicates the present motion to set aside such proceedings.

Had he then made this motion, he would probably have been in a position to raise some or all of the questions he now presents, but instead of asking for such relief, he sought and obtained leave to appear before the referee to test the title of Schaffner to the judgments assigned by the receiver and his right to obtain any benefit therefrom.

Having full knowledge of all the fa’cts, he was then called upon to elect whether he would recognize the dissolution proceedings or •assail their validity. He chose the former, however, and obtained the order permitting him to appear before the referee and contest the title to the judgments obtained by Schaffner from the receiver. "Without waiting for the decision of the referee, or giving any notice to Schaffner, whose rights would necessarily be affected if the petitioner is now successful, he moved on the other and different theory to have the dissolution proceedings and the receivership declared mull arid void.

We think that the denial of the motion by the judge below upon this ground was right, and that the order appealed from should be affirmed, with ten dollars costs and disbursements. •

Yan Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Patterson, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  