Page images
PDF
EPUB

§ 2421. The petition must show that the case is one of those specified in the last two sections, and must state the reasons, which induce the petitioner or petitioners to desire the dissolution of the corporation. A schedule must be annexed to the petition, containing the following matters, as far as the petitioner or petitioners know, or have the means of knowing the same:

1. A full and true account of all the creditors of the corporation, and of all unsatisfied engagements, entered into by, and subsisting against, the corporation.

2. A statement of the name and place of residence of each creditor, and of each person with whom such an engagement was made, and to whom it is to be performed, if known; or, if either is not known, a statement of that fact.

3. A statement of the sum owing to each creditor, or other person specified in the last subdivision, and the nature of each debt, demand, or other engagement.

4. A statement of the true cause and consideration of the indebtedness to each creditor.

5. A full, just, and true inventory of all the property of the corporation, and of all the books, vouchers, and securities, relating thereto.

6. A statement of each incumbrance upon the property of the corporation, by judgment, mortgage, pledge, or otherwise.

7. A full, just, and true account of the capital stock of the corporation, specifying the name of each stockholder; his residence, if it is known, or if it is not known stating that fact; the number of shares belonging to him; the amount paid in upon his shares; and the amount still due thereupon.

§ 2422. An affidavit, made by each of the petitioners, to the effect that the matters of fact, stated in the petition and the schedule, are just and true, so far as the affiant knows or has the means of knowing the same, must be annexed to the petition and schedule.

§ 2423. [Am'd 1889.] Where the petition is addressed to the supreme court, the papers must be presented at a term of that court, held within the judicial district, enbracing the county wherein the principal office of the corporation is located. In a case specified in section two thousand four hundred and twenty of this act, the court may, in its discretion, entertain or dismiss the application. Where it ontertains the application, or where the case is one of those specified in section two thousand four hundred and nmeteen of this act, the court must make an order, requir ing all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved. The order must be entered, and the

papers must be filed, within ten days after the order is made, with the cl rk of the court, or, in the supreme court, with the clerk of the county where the principal office of the corporation is located. If it shall be made to appear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceeding before final order, on motion of the petitioners on notice to the Attorney-General, or on motion of the Attorney-General on notice to the corporation, appoint a temporary receiver of the property of the corporation, which receiver shall have all the powers and be subject to all the duties that are defined as belonging to temporary receivers appointed in an action, in section one thousand seven hundred and eightyeight of this act. The court may also, in its discretion, at any stage in the proceeding after such appointment upon like motion and notice, confer upon such temporary receiver the powers and authority, and subject him to the duties and liabilities of a permanent receiver, or as much thereof as it thinks proper, except that he shall not make any final distribution among the creditors and stockholders, before final order in the proceedings, unless he is specially directed so to do by the court. If such receiver be appointed, the court may, in its discretion, on like motion and notice, with or without security, at any stage of the proceeding before the final order grant an injunction, restraining the creditors of the corporation from bringing any action against the said corporation for the recovery of a sum of money, or from taking any further proceedings in such an action theretofore commenced. Such injunction shall have the same effect and be subject to the same provisions of law as if each creditor upon whom it be served, was named therein.

§ 2424. A copy of the order must be published, as pre- 128 N.Y. 550. cribed therein, at least once in each of the three weeks immediately preceding the time fixed therein for showing cause, in the newspaper printed at Albany, in which legal notices are required to be published; and also in one or more newspapers, specified in the order, published in the city or county wherein the order is entered.

§ 2425. A copy of the order must also be served upon 4 Month. L. each of the persons, specified in the schedule as a creditor Bul. 64. or stockholder of the corporation, or as a person to whom an engagement of the corporation is to be performed, other than a person whose residence is stated to be unknown, or to be without the United States. The service must be made, either personally, at least twenty days before the time appointed for the hearing; or by depositing a copy of the order, at least forty days before the time so appointed, in the post-office, inclosed in a postpaid wrapper, addressed to the person to be served, at his residence, as stated in the schedule.

§ 2426. At the time and place specified in the order, or at the time and place to which the hear ng is adjourned, the court, or the referee, must hear the allegations and proofs of the parties, and determine the facts. If a referee was not

34 Hun, 369.

[blocks in formation]

designated in the order to show cause, the court may, in its discretion, appoint a referee when or after the order is returnable. The decision of the court, or the report of the referee, must be in writing, and must be made and filed with all convenient speed. It must contain a statement of the effects, credits, and other property, and of the debts and other engagements, of the corporation, and of all other matters, pertaining to its affairs.

§ 2427. [Am'd 1894.] The court or the referee is entitled to use, upon the hearing, the original petition, and the schedules annexed thereto; and the clerk must transmit them accordingly, upon the written order of the judge, or of the referee. In that case, they must be returned with the decision or report. The court may, at any stage of the proceedings before final order, on the application of the peti tioners, or a majority of them, or on the application of the temporary receiver, gant an order amending the schedules annexed to the original petition, by the insertion of additional items, or by making the statements or inventory fuller and in greater detail than as originally filed, with the like effect as though said petition and schedules, had been originally presented and filed as amended.

§ 2428. Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each person who has made himself a party to the proceedings, by filing with the clerk, before the close of the hearing, a notice of his appearance, in person or by attorney, specifying a post-office within the State, where such a notice may be served. The notice may be served as prescribed in this act, for the service of a paper upon an attorney in an action. Where the hearing was before the court, a motion for a final order may be made immediately, or at such a time and upon such a notice, as the court pre

scribes.

§ 2429. Upon an application for a final order, if it appears to the court, in a case specified in section two thouSand four hundred and nineteen of this act, that the corPoration is insolvent, or, in a case specified either in that section, or in section two thousand four hundred and twenty of this act, that, for any reason, a dissolution of the corporation will be beneficial to the interests of the stockholders, and not injurious to the public interests, the court must make a final order, dissolving the corporation, and appointing one or more receivers of its property. Upon the entry of the order, the corporation is dissolved. The court may, in its discretion, appoint a director, trustee, or other officer, or a stockholder of the corporation, a receiver of its property.

§ 2430. A sale, assignment, mortgage, conveyance, or other transfer, of any property of a corporation, made after the filing of a petition as prescribed in this title, in payment of, or as security for, an existing or prior debt, or for any other consideration; or a judgment thereafter rendered against the corporation by confes-ion, or upon the acceptance of an offer, is absolutely void, as against the receiver

appointed in the special proceeding, and as against the creditors of the corporation.

132 N.Y. 212.

§ 2431. [Am'd 1884,] This title does not apply to an in- 103 N. Y.302 corporated library society, to a religious corporation, or to a select school or academy incorporated by the regents of the university, or by the legislature, or to a municipal or other political corporation. In the case of corporations affected by the provisions of this title and not having stockholders, it shall be sufficient for the purposes of this title to notify, name and refer to the "members" of such corporations instead of "stockholders " as herein provided.

TITLE XII.

Proceedings supplementary to an execution against property. ARTICLE 1. Proceedings to compel an examination of the judgment debtor, and of his debtor or bailee.

2. The receiver.

ARTICLE FIRST.

PROCEEDINGS TO COMPEL AN EXAMINATION OF THE JUDG-
MENT DEBTOR, AND OF HIS DEBTOR OR BAILEE.

§ 2432. The different remedies § 2450. Balance to be paid or de

under this title.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

livered to judgment
debtor, etc.

2451. Judge ma enjoin trans-
fer, etc. of property.
2452. Mode of service of certain
orders.

2453. Service of a warrant.
2454. How proceedings discon-
tinued or dismissed.
2455. Costs to judgment cred-
itor.

2456. Id. to judgment debtor,

etc.

2457. Disobedience to order;
how punished.

2458. Upon what judgment, and
to what county, the exe-
cution must have is-
sued.

2459. In what county judgment
debtor, his bailee, etc.,
must attend.

2460. No person excused from
answering on the
ground of fraud.

2461. Proceedings where judg-
ment is against joint
debtors.

2462. Proceedings commenced
before one judge may
be continued before
another.

2463. Cases where this chapter
is not applicable; what
property cannot be
reached.

[blocks in formation]

§ 2432. This title provides for three distinct remedies, as follows:

1. An order made or a warrant issued against a judgment debtor, after the return of an execution.

2. An order made, or a warrant issued against a judg ment debtor, after the issuing and before the return of an execution.

3. An order, made after the issuing, and either before or after the return, of an execution, against a person who has property of the judgment debtor, or is indebted to him.

The proceedings under subdivision third of this section. may be pursued, either alone, or simultaneously with the proceedings under subdivision first or subdivision second. § 2433. Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed, only as follows:

1. An order, made by a judge, out of court, may be vacated or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued.

2. Where the execution was issued out of a county court, an appeal from an order, made in the course of the proceedings, may be taken in like manner, as if the order was made in an action brought in the same court,

§ 2434. [Am'd 1881, 1884.] Either spécial proceeding may be instituted before a judge of the court out of which, or the county judge, the special county judge, or the special surrogate of the county to which the execution was issued, or where it was issued to the city and county of New York, from a court other than the city court of that city, before a judge of the court of common pleas for that city and county. Where the execution was issued out of a court other than the supreme court, and it is shown by affidavit that each of the judges before whom the special proceeding might be instituted, as prescribed by this seclion, is absent from the county, or for any reason unable or disqualified to act, the special proceedings may be instituted efore a justice of the supreme court. In that case if he does not reside within the judicial district embracing the county to which the execution was issued, the order made or warrant issued by him must be returnable to a justice of the supreme court residing in that district, or the county judge, or the special county judge, or special surrogate of that or an adjoining county, as directed in the order or

warrant.

$2435. At any time within ten years after the return, wholly or partly unsatisfied, of an execution against property, issued upon a judgment, as prescribed in section two thousand four hundred and fifty-eight of this act, the judg ment creditor, upon proof of the facts, by affidavit, or

« PreviousContinue »