Fine Lake Iron Co. v. La Fayette Car Works

WOODS, Circuit Judge. When the receiver was appointed the intervener had a suit pending in one of the courts of Hew York for the same demand that is in question here. In pursuance of the notice requiring that claims against the receiver be filed here within a time limited, the intervener presented the claim here, saying nothing of the suit in Hew York, and it was referred to the master for proof. Having obtained judgment in the Hew York court, the intervener obtained leave of the master, subject to exceptions, to amend his state-' ment of the claim so as to show the recovery of the judgment, and, having put in evidence a transcript of the judgment, claimed that it was conclusive evidence of the amount of his claim. The master held that it was neither conclusive nor prima facie evidence, and upon the merits reported against the petitioner. The authorities cited on the subject recognize the right of one who has commenced a suit before the appointment of a receiver of the 854 debtor’s property to prosecute tbe action to judgment, and that a judgment so obtained establishes, as against the receiver, the rightful amount of the demand. Pringle v. Woolworth, 90 N. Y. 502; Gluck & B. Rec. pp. 26, 27, and cases cited. It is insisted, however, that by filing his claim here, without referring to the pending suit, and reserving the right to prosecute it, the petitioner made an election of remedies, and lost his right to proceed with the suit. I do not think the doctrine of election fairly applicable. A. time having been fixed by order of this court within which claims should be filed, the intervener could not omit presenting his demand without great risk of losing it. He could not present the judgment, because that had not been rendered. He might, of course, have made reference to the suit; but his failure to do so, in view of the admitted fact that the receiver and his counsel had knowledge of the pendency of the suit, was not a waiver of the right to prosecute the action. I do not think, however, that the receivership should be charged with the costs of both investigations, and therefore allow the petitioner the amount of his judgment, exclusive of costs, — that is to say, the sum of $7,000.56, — with interest from the date of the judgment. Decree accordingly.