
    Effie B. Walter, Etc., Plaintiff, v. The F. E. McAlister Co., et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1897.)
    ¡Foreign corporations — Eights of nonresident stockholder to an auxiliary receiver — A void assignment should be attached by the receiver.
    A nonresident stockholder of an insolvent foreign corporation, of which a receiver has been appointed in the state óf its domicile, and which has never obtained the certificate authorizing it to transact business in the state, required by Laws 1892, chapter 687, section 15, may, under sections 1810 and 1812 of the Code of Civil Procedure, maintain an action to procure the appointment of "an auxiliary receiver of its property in this state; but, although a general assignment, made by a corporation, contrary to the law both of the domicile • and of the forum, is necessarily invalid, a stockholder, who is not proceeding upon a judgment and unsatisfied execution, cannot impeach the assignment, as the temporary receiver would, after his appointment had been made permanent, be the only person competent to procure it to be set aside.
    Action against a corporation. The opinion states the case.
    Wahle & Stone, for plaintiff.
    Thornton, Earle & Kiendl, for defendants.
   Pryor, J.

The plaintiff, a nonresident stockholder in a foreign corporation, sues for the appointment of a receiver of its property in this state, and to set aside an assignment by it for the benefit of creditors. ' .

At the threshold it is objected that the court is incompetent to entertain the action; because brought by a nonresident against a foreign corporation. But, since the property to be protected is exposed to the peril in this jurisdiction, and the challenged assignment was executed in the state to a resident, the case is clearly within the scope of subdivision 3, section 1780, of the Code of Civil Procedure.

It is. urged again that no demand for redress on the corporate authorities preceded the- action, to which the obvious and all-sufficient answer is, that “ the functions of a corporation are suspended by the appointment of a receiver,” and that, its faculty of suing then no longer exists.- Beach on Receivers, § 205. In respect, moreover, to the relief by sequestration, the right of the plaintiff is not by substitution nor as representative of-the corporation; and. as to' the assignment, the corporate • officers are the parties implicated. Barr v. R. R. Co., 96 N. Y. 444, 451; Kelsey v. Sargent, 40 Hun, 150.

Another objection to a discussion of the merits imports that the plaintiff is precluded from prosecuting the action, because the defendant corporation has not procured the certificate prescribed by section 15, chapter 687, Laws of 1892. But, as already said, the plaintiff does not sue in the right or as the representative of the corporation, nor in aid of the business conducted here without' authority, nor for the enforcement of a contract made in the state.

Upon the pleadings and proofs it is apparent that the defendants’ company is a Hew Jersey corporation; that it had an office and transacted business in the state of Hew York; that it is insolvent; that, in this state and to a resident, it has made an assignment, with preferences, for the benefit of its creditors; that it has officers and creditors and property in this state; that a receiver of its property has been appointed in the jurisdiction of its origin, and its .officers restrained from intermeddling with its affairs and effects.

That upon these facts an action lies, at the suit of a stockholder, for the' appointment of a receiver of the corporate assets in the state, was expressly adjudged by Van Brunt, J., at Special Term, in Woerishoffer v. North River, etc., Co., 6 Civ. Pro. 113, and was recognized as clear law by the General Term of the fourth department in Phoenix, etc., Co. v. North River, etc., Co., 6 Civ. Pro. 106. The principle upon which the relief proceeds is vindicated in Redmond v. Hoge, 3 Hun, 171; Hall v. Holland House Co., 12 Misc. Rep. 55; Dreyfuss v. Seale, 18 id. 551. Indeed, the action has. the sanction .of statutory provisions. Code Civ. Pro., §§ 1810, 1812. Nor is the nonresidence of the plaintiff'any bar to its prosecution; since the receiver here is not the representative of the foreign creditors of the corporation (Booth v. Clark, 17 How. [U. S.] 322), and will not be permitted to remove the property from the state until the claims of domestic creditors are satisfied. Beach on Receivers, § 254. As the plaintiff is a citizen of Rew Jersey, and the receiver there was appointed on her application, she will not he heard to contest his title even as to property in this state. Bagby v. Atlantic, etc., R. R. Co., 86 Penn. St. 291. But so far from impugning his right the relief she solicits is for an auxiliary receiver.

The criticism of the complaint for defect in the prayer for judgment is unavailing. National Bank v. Wetmore, 124 N. Y. 241, 253; Dreyfuss v. Seale, 18 Misc. Rep. 551.

The assignment by the corporation for the benefit of creditors, being contrary to the law, both of the domicile and the forum, is necessarily invalid; and for repugnancy to the policy of this state, will, receive no countenance from its courts. Hollis v. Drew, 95 N. Y. 166, 175; Bard v. Poole, 12 id. 495; Vanderpoel v. Gorman, 140 id. 563, 567; Minor v. R. R. Co., 53 id. 363, 367.

I am of the opinion, however, that it is not for a stockholder to impeach the assignment. The order appointing the temporary receiver not being before me, I am ignorant of his powers; but upon application to the court, he might have been armed with authority to assail the assignment. At all events, when by the judgment herein a permanent receiver shall be appointed, he will be invested with the title to all the assets of the corporation and the right to sue for and collect them; and then he alone will be competent to challenge conveyances by the corporation. Passavant v. Bowdoin, 15 N. Y. Supp. 8,10; In the Matter of the Guardian, etc., Co., 77 N. Y. 272; Osgood v. Laytin, 3 Abb. Ct. App. Dec. 418; Beach on Receivers, § 205.

If, however, under the circumstances disclosed in the case, a suit to set aside a fraudulent transfer by a corporation may be maintained by the plaintiff, it is in the interest of creditors* and so must proceed upon a judgment and an unsatisfied execution. Buckley v Harrison, 10 Misc. Rep. 683; 31 N. Y. Supp. 999, 1005; Sturges v. Vanderbilt, 73 N. Y. 384. A receiver, on the contrary, is re- ' lieved from compliance with such condition. 3 Banks Bros. R. S. 2166; Southard v. Benner, 72 N. Y. 424.

Judgment-for plaintiff in conformity with opinion; but Avithout costs, since the defendants prevail upon one cause of action. Crippen v. Heermance, 9 Paige, 211.

Ordered accordingly.  