Branch v. Harrington

Murray, J. As to the first ground I find,, as a fact, from the affidavits and papers presented, that the action was authorized by the plaintiff, as such receiver. As to the» other ground, the general rule is that a receiver in an action cannot appoint, as his attorney, the attorney of either party (9 Bosw., 684; 4 Edw. Ch. B., 416; 1 id., 576; 2 id., 165; 19 How., 394). A receiver appointed in supplementary proceedings has the same author [197] ity and performs the same duties as one appointed generally in the action (Code, see. 298). The same rules must govern them in the performance of their duties. The plaintiff in this case having been appointed a receiver in proceedings supplementary to an execution, and such proceedings being proceedings in the action, it was irregular to appoint the attorney of the plaintiff in that action to be his attorney. The defendant in the first action had the right to object on the ground of such irregularity. In the action brought by the receiver, the defendant in the former action is made defendant, together with Mabelia, his wife, who was a stranger to the former action. It is charged that the former defendant had conveyed real estate to his wife, with intent to cheat and defraud his creditors, and that she received such conveyance for the like purpose and with like intent. This action is brought by the receiver to set aside such conveyance, making both the fraudulent grantor and grantee parties. Mabelia, being a stranger to the former suit, had no right to object to such irregularity (Warren agt. Sprague, 11 Paige, 200; Cummings agt. Edgerton, 9 Bosw., 684). The motion is made in behalf of both defendants,, and, it being irregular as to the defendant Sheffield Harrington, it must be granted. I think the practice has been for the receiver to employ the creditor’s attorney, and the question has not been understood as applying to receivers appointed in supplementary proceedings, therefore no costs of motion will be allowed.