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Action upon other official bonds.

§ 3. Order granting leave to prosecute sheriff's bond.

SUPREME COURT.

In the matter of the application At a special term (as in p. 199).

of John Den.

On reading and filing the (affidavit of John Den) bearing date the 18, and a certified copy of the

day of

bond of Richard Fen, sheriff of the county of

ORDERED: That the said John Den have leave to prosecute the official bond of the said Richard Fen in the name of the people of this State, and to recover to his own use the amount of the loss and damage accruing to him by reason of the premises.

Section 2. Action upon other official bonds.

a. Surrogates' bonds. The statute also provides that, whenever the surrogate of any county shall be guilty of any default or misconduct in his office, the party aggrieved thereby may apply to the court of chancery (now the supreme court) for leave to prosecute the official bond of such surrogate. 2 R. S. 479, § 19 (501).

It also provides that the application shall be accompanied by the same proof required in proceedings on sheriffs' bonds; and that, upon such leave being granted, the applicant shall be authorized to prosecute the bond in the name of the people, subject, in all respects, to the provisions of the statute in respect to suits on the official bond of sheriffs. Ib., § 20.

b. Bond of the clerk of the city and county of New York. The same proceedings may be had upon the bond of the clerk of the city and county of New York; but the application may be made to the New York common pleas, as well as to the supreme court, and the action may be brought in either of those courts, or in the superior court. 2 R. S. 479, § 24 (501).

c. City marshal's bond. So, the bond of the marshal of any city may be prosecuted in the same manner; but the application for leave to prosecute may be made to the mayor's court of such city, and the action may be there prosecuted. 2 R. S. 480, § 26 (502).

d. Constable's bond of the city of New York. The bond of a constable of the city of New York can only be prosecuted after judgment against such constable, and after leave is obtained, on motion made in the New York common pleas, in open court. Davis v. Kruger, 4 E. D. Smith, 350.

Actions upon bonds or undertakings given in the course of an action.

e. Guardian's bond. It is no defense to an action upon the bond of the guardian of an infant that such action has been instituted without leave of the court in which the bond was taken. But if the action has been so commenced, it may be restrained. Cuddeback v. Kent, 5 Paige, 92. See 2 R. S. 194, § 173 (203); Salisbury v. Van Hoesen, 3 Hill, 77.

Section 3. Actions upon bonds or undertakings given in the course of an action.

a. In general. Bonds and undertakings given in the course of an action, although not strictly within the definition of official bonds, are still so nearly related to the latter as to permit of their arrangement under this chapter. They will, therefore, be noticed in this connection, and those cases, in which leave to sue may be necessary, pointed out.

b. Bond on a ne exeat. A bond given on the arrest of a defendant upon a ne exeat cannot be prosecuted without leave of court. Harris v. Hardy, 3 Hill, 393. But if an action is commenced thereon without first obtaining leave of court, the defendant's only remedy is by motion to set aside the proceedings. Ib.

c. Injunction bond. So, under the former practice, an action could not be brought upon an injunction bond without leave of the court. Higgins v. Allen, 6 How. 31. See 2 R. S. 190, § 150 (198). See, also, N. Y. Central Ins. Co. v. Safford, 10 How. 344. d. Undertakings given on appeal. Where an undertaking given on appeal has been forfeited by an affirmance, and nonpayment of the judgment appealed from, it may be prosecuted without leave of court. N. Y. Central Ins. Co. v. Safford, 10 How. 344.

e. Attachment. An action to obtain possession of property belonging to the defendant in an attachment suit may be brought by a sheriff, without leave of court. Kelly v. Breusing, 33 Barb. 123; affirming 32 id. 601.

ARTICLE IV.

ACTIONS BY AND AGAINST RECEIVERS, ETC.

Section 1. Actions by receivers.

a. Leave to sue. As a general rule, a receiver cannot prosecute or defend an action without express leave of court. Phelps v.

Actions by and against receivers, etc.

Cole, 3 Code R. 157; Meritt v. Lyon, 16 Wend. 410; Matter of Bangs, 15 Barb. 266. If he does, he proceeds at his own peril, in regard to costs. Phelps v. Cole, 3 Code R. 157; Smith v. Woodruff, 6 Abb. 65. If he obtain leave to sue, he is generally bound to prosecute the action. Winfield v. Bacon, 24 Barb. 154.

b. Ejectment. A receiver cannot bring an action of ejectment without leave of court. Wynne v. Newborough, 1 Ves. Jr. 165; 3 Bro. C. C. 87; Meritt v. Lyon, 16 Wend. 410.

c. Insolvent corporations. A receiver of an insolvent corporation cannot interfere in a case, as by giving notice of a motion or conducting an appeal in his own name, unless he has been made a party to the action by an order of the court. Tracy v. First National Bank of Selma, 37 N. Y. (10 Tiff.) 523; 5 Trans. App. 14; Wait's Code, 423.

d. Receivers appointed in other States. Receivers appointed in other States may sue, as such, in the courts of this State. Runk v. St. John, 29 Barb. 585.

e. Supplementary proceedings. A receiver appointed in supplementary proceedings has a general authority to sue for all debts or demands belonging to the judgment debtor. Rule 93, Sup. Court. But if he exercise this authority without express leave of the court, he will, as a general rule, be personally liable for costs. Smith v. Woodruff, 6 Abb. 65.

So he may bring an action to recover back an excess of usurious interest paid by the judgment debtor, but at his risk of costs if he fail in the action. Palen v. Johnson, 46 Barb. 21; Palen v. Bushnell, id. 24.

So, also, he may bring an action in the nature of a creditor's bill to set aside an assignment made by the debtor in fraud of his creditors. Porter v. Williams, 9 N. Y. (5 Seld.) 142; 12 How. 107. See Bennett v. McGuire, 58 Barb. 625.

f. Application for leave. This application for leave to sue is ex parte in its nature, and may be made upon affidavits showing the facts which render a suit expedient; but the better course is to present such facts in the form of a verified petition.

g. Petition of receiver for leave to commence an action. (Title of action.)

To the Supreme Court of the State of New York (or other court whose officer he is):

The petition of R. C., receiver, respectfully shows:

at

Order granting receiver leave to sue.

1. That by an order of this court, made at a special term, held on the day of 18, your petitioner was appointed receiver of (all the property and effects of the late firm of A. and B.) in the pleadings in the above-entitled cause mentioned.

2. That your petitioner duly filed approved security, and took possession of the said (property and effects).

3. (State briefly the cause or causes of action, as they would be stated in a concise complaint; thus:) That among other debts due the said firm, is one of dollars, due from C. D., of, etc., the particulars of which are set forth in a schedule hereto annexed.

4. That your petitioner has used every effort to settle the said claim without litigation, but has been unable to obtain payment of the same.

5. That your petitioner has made diligent inquiry in relation to the pecuniary standing of the said C. D., and from such inquiry he is (informed and believes that the said C. D. is able to pay said debt, and that a judgment against him could be satisfied out of his property, and that he is further advised by his counsel, R. H. Rosa, Esq., and believes that he has a good cause of action against said C. D., as aforesaid).

Your petitioner, therefore, prays that he may be allowed, as such receiver, to commence, continue and perfect an action in (any court of this State) against the said C. D., and for such other or further order as to the court may seem meet.

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On reading and filing the petition of R. C., dated the

day of 18 the receiver appointed in this action, and on motion of (R. H. Rosa, Esq.), of counsel for the same,

ORDERED: That the said R. C., as receiver aforesaid, do commence and perfect an action in a court of record in this State, against C. D., of dollars, according

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to the prayer of said petition.

Section 2. Actions against receivers, etc.

a. Leave to sue. An action against a receiver cannot be commenced without the permission of the court which appointed

Ejectment-Injunction - Leave not obtained-Application for leave.

him. Degroot v. Jay, 30 Barb. 483; Higgins v. Wright, 43 id. 461, 468; 9 Abb. 364; Angel v. Smith, 9 Ves. Jr. 335. See Hubbell v. Dana, 9 How. 424; Wait's Code, 423.

b. Ejectment. In this action such permission must be obtained before this action can be properly commenced. Angel v. Smith, 9 Ves. Jr. 335.

c. Injunction. So, also, an injunction will not be issued to restrain a receiver from prosecuting a suit which he has commenced with leave of court. The proper remedy in such case is to apply to the court which appointed him for instructions. Winfield v. Bacon, 24 Barb. 154; Van Rensselaer v. Emery, 9 How. 135.

d. Leave not obtained. Omitting to obtain leave of court before commencing an action against a receiver is a contempt of court. Taylor v. Baldwin, 14 Abb. 166; De Groot v. Jay, 30 Barb. 483; S. C., 9 Abb. 364; Edwards v. Bostwick, N. Y. Trans., Feb. 8, 1860; Noe v. Gibson, 7 Paige, 513. See Chautauque Bank v. Risley, 19 N. Y. (5 Smith) 376. But the omission is an irregularity which may be waived by an appearance in the case without objection. Hubbell v. Dana, 9 How. 424. See Jay's Case, 6 Abb. 293; Parker v. Browning, 8 Paige, 389; and if judgment is once obtained in an action so commenced and prosecuted it will be valid. Chautauque Bank v. Risley, 19

N. Y. (5 Smith) 376.

e. Application for leave. The application for leave to commence an action against a receiver seems to be a special proceeding similar to that in the case of a lunatic. Thus, if the claim appears to be just, the court will direct it to be paid out of the fund in the hands of the receiver; or, if the claim is disputed, may refer it; such a course is better than to grant permission to commence an action. See De Groot v. Jay, 9 Abb. 365; S. C., 30 Barb. 483; but such a disposition cannot always be made, as in those cases where other parties are interested whose rights cannot be settled by a reference.

The receiver is not entitled to notice of the application as a matter of right, but it is better to give him such notice, otherwise he may obtain a revocation of the order without notice, if it was made out of court.

f. Referee. An action against a referee, in partition, for money in his possession, as such referee, cannot be commenced without leave of court. Higgins v. Wright, 43 Barb. 462.

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