Roome v. Swan

McAdam, C. J. On the 18th of May, 1888, J. Hart Lyon, Esq., was appointed receiver of the defendant in supplementary proceedings, and on May 22d filed the required bond, and entered upon the duties of his office. The defendant, at the time the proceedings were commenced, was the owner of a seat in the Consolidated Stock & Petroleum Exchange of New York. The receiver, on September 26th, sold the seat to James B. Weir, Jr., for $825, and executed to the purchaser a bill of sale of the same. In order to consummate the title of the purchaser, the rules of the exchange require that a consent be signed by the person in whose name the seat stands; and the defendant has refused to execute such a consent. The receiver now applies for an order compelling the defendant to sign the required consent. The application will be so far granted as to require the defendant to sign a consent that the purchaser be vested with all the rights, privileges, and interests which inure to his membership. The court cannot, on this application, require the defendant to formally resign his membership, but the consent required is equivalent to such a resignation; nor can it compel the defendant to nominate or recommend as his successor a person not known to him, as the action of the court renders these formalities unnecessary, for the law will deem the purchaser to be the legal nominee of the defendant, as he does not now possess the authority to nominate any one else. If the exchange refuses to accept the nominee, or refuses to act according to its duty in the premises, the receiver may take such action against it as he may be advised; the character of the action depending upon the final attitude of the exchange. The defendant cannot anticipate the action of the exchange, or make any objection on its behalf, as that institution must, in the, nature of things, determine its own course, upon such advice as it sees fit to follow. These directions are in harmony with the policy of the law. See Bank v. Murphy, 60 How. Pr. 426; Londheim v. White, 67 How. Pr. 467; Ritterband v. Baggett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. 328; Bailey v. Ryder, 10 N. Y. 363.