mand or evidence of indebtedness so presented. At the expiration of ten days from the date specified in such notice, or within such further time as may be allowed by said court or such judge thereof, the said receiver shall make a list of all the claims presented to or proved before him, in which list he shall specify the amount, origin and true consideration of each claim so presented to or proved before him, and the name of the person in whose behalf the same is presented or proved, and the date when such claimant became the true owner thereof. Such list, when so completed, shall be verified by such receiver, and shall thereupon be filed, together with such evidence as may have been taken by him, in the office of the said county clerk. The said receiver shall, immediately after such filing, publish a notice daily for fourteen days in two newspapers to be designated by said court, or such judge thereof, stating that such list will be presented to such court, or to a judge thereof, residing in such county, on a day and at a place to be designated in such notice, and the said court, or such judge thereof, will then and there be asked for an order directing the sale at public auction of all the property specified in such inventory. Any creditor or stockholder may appear and be heard at such time and place. It shall be the duty of said court, or of such judge thereof, to whom such list shall be presented, to examine the same together with such evidence as the receiver shall have taken, and to reject all claims, demands and evidences of indebtedness which were not legally incurred or created by said corporation, or which were in excess of its powers, or which are for any reason shown to be illegal; and no claim or demand shall be allowed for any greater amount than the money value of the consideration therefor, unless the said court or judge shall find and decide from the evidence taken by and before the receiver, that the person professing to own such claim does in truth own the same by reason of having taken a negotiable instrument or paper before the act dissolving and annulling the corporation alleged to be bound by such instrument or paper, and also before such instrument or paper was by its terms due, and that the same was taken for value paid and parted with in good faith before said act of dissolution and without knowledge or notice of any defect, want or deficiency of previous consideration, or other equity, offset, or defense originally attaching to such instrument or paper, or to the claim or demand upon which the same are founded. Such examination and rejection shall be made by such court or such judge thereof, and not by any referee. Claims not presented to be barred; rejected claims, proceedings as to; appeal; order for property to be sold; proceedings thereupon; receiver's compensation; distribution to creditors and stockholders. §6. All creditors whose claims shall not have been presented as above provided shall be debarred from participating in the avails of the sale of the property described in said inventory. Any creditor whose claim may have been rejected, and who shall have appealed, may apply to said court or such judge thereof for an order that a pro rata amount of the avails of such sale which would have appertained to the claim of such creditor, had not the same been rejected, may be retained in court to abide the result of his appeal, and said court, or such judge thereof, shall have discretion to grant the same. Any claimant feeling aggrieved by such rejection may appeal therefrom to the general term and to the court of appeals, in the manner now provided by law for such appeals from orders in civil actions, but neither of such appeals shall stay the proceedings of such receiver, or court, or judge thereof, or a sale of such property as herein provided for. The amount of all claims and demands so rejected by said court or such judge shall be deducted from the total amount of claims and demands so filed by the said receiver, and an entry of such rejection shall be made upon said list by said court or such judge, and thereupon the said court or such judge shall by order, reciting the proceedings direct the immediate sale by said receiver, at public auction, at a time and place and in the manner, and after such notice as may be provided in said order, of all the property in said inventory specified, to such person, firm or corporation as shall bid the highest sum or amount therefor. The receiver shall report to said court or such judge thereof, the name of the highest bidder, the amount bid, and thereupon said court or such judge thereof shall by order forthwith direct the said receiver by proper written instrument to convey and transfer all of the property described in said inventory, and offered for sale at said auction, to said highest bidder, who on receiving the same shall pay to the receiver the sum bid. The said court or such judge thereof, shall allow to the receiver two per cent upon the whole amount received by him from the sale of the property described in said inventory for his compensation as such receiver, and also his disbursements, including witness' fees, and the service of subpoenas, and to the attorney-general, and to such other counsel as the receiver may find it necessary to employ, a reasonable counsel fee. The residue of the amount in the hands of the receiver shall be by him distributed among the owners of the claims in said list, which have been allowed subject to the deductions above provided for in case of an appeal, pro rata, or in full if such residue shall be sufficient therefor, and the receipts of such owners therefor shall be taken upon such list of claims. The balance of such residue, if any, shall be distributed among the lawful stockholders of such corporation in proportion to their interest therein. No stay of proceedings. § 7. No issue raised by answer, or demurrer, or otherwise to the complaint herein before provided for shall stay the proceedings of the receiver, or court or a judge thereof. Final discharge of receiver, proceedings for. § 8. The said receiver after such payment may apply to said court, or a judge thereof, for his final discharge, and if it shall appear that the said receiver has in all things fulfilled his duty in the premises, the said court or judge shall grant such final discharge, and said receiver, until so discharged, may as such receiver sue for and collect all debts due, and demands owing to such corporation. County clerk, to issue subpoenas on request of receiver; oaths to witnesses; penalties. § 9. It shall be the duty of the clerk of the county in which such suit is brought, to issue, upon the request of the receiver, subpoenas to compel the attendance of witnesses to enable him to ascertain the nature, extent and location of the property of said corporation, and to give evidence concerning any claim which may be presented by any creditor against the estate of such corporation, which subpoenas shall be served in like manner as in civil actions, and the fees of the witness shall be the same as are now established by law in such actions. The receiver shall have full power and authority to administer oaths to all such witnesses and to any creditor of such dissolved corporation, and to examine them concerning the property of such dissolved corporation, and as to the claims presented against it. Disobedience to such subpoenas shall be a contempt of court, and shall be punished in like manner as other contempts of court are now punishable. Wilful false swearing by any witness or creditor in any such examination shall be deemed perjury, and shall be punishable as such in like manner as if committed by a witness on a trial of a civil action. Suits and injunctions against receiver regulated. § 10. All applications for leave to sue such receiver and all applications for injunctions to restrain his proceedings shall be made only to the supreme court in the county in which such action was brought, and shall not be made to any other court, or to the supreme court in any other county, and shall not be granted except upon eight days' notice to the attorney-general of the time and place of making such application. In any action hereafter brought or now pending by the attorney-general, to close up, determine or settle the affairs of any corporation dissolved by legislative enactment, the judgment or determination of the supreme court at general term may be reviewed upon appeal to the court of appeals, as now provided by law, whether the judgment rendered in the case be interlocutory or final. [Thus amended by L. 1887, ch. 601.] 45 Hun, 519. Repeal of other acts. § 11. This act shall take effect immediately, and all acts and parts of acts inconsistent therewith are hereby repealed. ARTICLE THIRD. OF THE VOLUNTARY DISSOLUTION OF CORPORATIONS. SEC. 58-65. [Repealed.] 66. Who may be receivers; security to be given. 70. Notice to be given by receivers; its contents. 71. Acts of corporation after presenting petition, void. 72. Debtors to account to receivers; their powers to discover debts, etc. 73. Power of receivers to refer controversies; proceedings. 74. Duties of receivers; to call meetings of creditors, etc. 75. Subsisting contracts how cancelled. 76. Commissions to be allowed to receivers. 77. To retain monies to cancel subsisting contracts. 78. Also to meet recovery in suits pending. 79. Order of payment of debts. 80. Second and final dividend when to be made, how notified. 81. Proceedings therein; to be final, except certain cases. 82. Receivers not to be answerable for debts not exhibited. 83. Surplus to be distributed among stockholders. 84. Application of monies retained to meet suit. 85. Power of court of chancery over receivers. 86 When to render account on oath to court. 87. Notice of intent to render, when and how to be published. 88. Duty of master to whom account is referred. 89. Settlement of account by court, its effect; further accounts, etc. 90 & 91. [Repealed.] [Sections 58-65 were repealed by L. 1880, ch. 245.] [Sections 66 to 89, both inclusive, were saved by the repealing act of 1880, which declared them applicable to a receiver appointed as prescribed in § 2429 of the Code of Civil Procedure.] ᎪᎡᎢ. 8. [467] [468] Pr. R., 57. § 66. Any of the directors, trustees or other officers of such Receivers; security. corporation, or any of its stockholders, may be appointed receivers, 16 How who, before entering upon the duties of their appointment, shall give such security to the people of this state, and in such penalty, as the court shall direct, conditioned for the faithful discharge of the duties of their appointment, and for the due accounting for all monies received by them. rights. § 67. Such receivers shall be vested with all the estate, real and [469] personal, of such corporation, from the time of their having filed Their the security herein before required, and shall be trustees of such estate for the benefit of the creditors of such corporation and of its stockholders. 1 N. Y., 332; 26 Barb., 59, 311; 23 Barb., 656; 1 Barb., 148; 3 Wend., 13; 22 How. Pr. R., § 68. Such receivers shall have all the power and authority con- Their au ferred by law upon trustees to whom an assignment of the estate of thority. insolvent debtors may be made, pursuant to the provisions of the fifth chapter of the second part of the Revised Statutes. 36 N. Y., 350; 6 Bosw., 638; 55 Barb., 219; 4 T. & C., 622; 5 Robt., 362; 1 N. Y., 332; 23 arrears of § 69. If there shall be any sum remaining due upon any share of To prosestock subscribed in such corporation, the receivers shall imme- cute for diately proceed and recover the same, unless the person so indebted stock. shall be wholly insolvent; and for that purpose may file their bill 109; 21 in the court of chancery, or may commence and prosecute an action 12 Barb., at law, for the recovery of such sum, without the consent of any of the creditors of such corporation. 25 Barb., Barb., 619; 672; 2 Barb., 298; Barb., 656; 1 Barb., 298; 6 Bosw., 638; 28 Hun, 375; rev'd 92 N. Y., 7. TITLE 4. To give notice of appoint ment, &c. 86 N. Y., 970. The receivers, immediately on their appointment, shall give notice thereof, which shall contain the same matters required by law in notices of trustees of insolvent debtors; and in addition thereto, shall require all persons holding any open or subsisting con350;5 Robt., tract of such corporation, to present the same in writing and in deBosw., 638. tail to such receivers, at the time and place in such notice specified; which shall be published for three weeks in the state paper and in a newspaper printed in the county where the principal place of conducting the business of such corporation shall have been situated. 362; 6 Certain sales, &c., void. 11 N. Y., 240; 26 Barb., 59; 8 Paige, § 71. All sales, assignments, transfers, mortgages and conveyances of any part of the estate, real or personal, including things in action, of every such corporation, made after the filing of the petition for a dissolution thereof, in payment of, or as a security for, any existing or prior debt, or for any other consideration, and all judgments confessed by such corporation after that time, shall be 21; 6 Bosw., absolutely void as against the receivers who may be appointed on such petition, and as against the creditors of such corporation. 382; 1 Duer, 129; 21How PR Pr. R, 93; 638; 5 Robt., 362; 105 N. Y., 340. account to receivers. receivers. § 72. After the first publication of the notice of the appointment of receivers, every person having possession of any property belongPower of ing to such corporation, and every person indebted to such corporaIN Y., 332; tion, shall account and answer for the amount of such debt and for 1 Barb., 148; 6 the value of such property to the said receivers; and all the proviPaige, 226; sions of law, in respect to trustees of insolvent debtors, the collection and preservation of the property of such debtors, the concealBosw., 638. ment and discovery thereof, and the means of enforcing such discovery, shall be applicable to the receivers so appointed, and to the property of such corporation. 4 Paige, 225; 36 N. Y., 350; 6 Referring controversies. [470] 18 N. Y., 213; 17 Barb., 111; 24 How. PR., 487; 6 Bosw., 638; 42 Ń. Y., 155; 81 N. Y., 242; 88 N. Y., 726. Meetings called, &c. 2295 Robt., Bosw., 638; 36 N. Y. 350; 82 N. Y., 283. Subsisting contracts. 8 Barb. Ch., 642; 2 Edw. Ch., 672; 78 N. Y114; 79 § 73. Such receivers shall have the same power to settle any controversy that shall arise between them and any debtors or creditors of such corporation, by a reference, as is given by law to trustees of insolvent debtors; and the same proceedings for that purpose shall be had, and with the like effect; and application for the appointment of referees may be made to any officer authorised to appoint such referees on the application of trustees of insolvent debtors, who shall proceed therein in the same manner; and the referees shall proceed in like manner, and file their report with the like effect in all respects. § 74. The receivers shall be subject to all the duties and obligations by law imposed on trustees of insolvent debtors, so far as they may be applicable, except where other provisions shall be herein made. They shall call a general meeting of the creditors of such corporation, within four months from the time of their appointment, when all accounts and demands for and against such corporation, and all its open and subsisting contracts shall be ascertained and adjusted as far as may be, and the amount of monies in the hands of the receivers declared. § 75. If there be any open and subsisting engagements or contracts of such corporation, which are in the nature of insurances or contingent engagements of any kind, the receivers may, with the consent of the party holding such engagement, cancel and discharge the same, by refunding to such party the premium or consideration paid thereon by such corporation, or so much thereof as shall be in the same proportion to the time which shall remain of any risk assumed by such engagement, as the whole premium bore to the whole term of such risk; and upon such amount being paid by such receivers to the person holding or being the legal owner of such engagement, it shall be deemed cancelled and discharged as against such receivers. ART. 3. § 76. Such receivers shall, in addition to their actual disburse- Receivers* ments, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors or administrators. [L. 1821, 141, § 1. See L. 1842, ch. 3.] commis- To retain certain § 77. The receivers shall retain out of the monies in their hands, a sufficient amount to pay the sums, which they are herein before monies. authorised to pay, for the purpose of cancelling and discharging any open or subsisting engagements. suits. 331. § 78. If any suit be pending against the corporation or against Id., to meet the receivers, for any demand, the receivers may retain the proportion 36 Barb., which would belong to such demand if established, and the necessary costs and proceedings, in their hands, to be applied according to the event of such suit, or to be distributed in a second or other dividend. [L. 1821, 141, § 3.] Order of § 79. The receivers shall distribute the residue of the monies in payment of their hands, among all those who shall have exhibited their claims debts. as creditors, and whose debts shall have been ascertained, as follows: 1. All debts entitled to a preference under the laws of the United States: 2. Judgments actually obtained against such corporation, to the extent of the value of the real estate on which they shall respectively be liens: on 3. All other creditors of such corporation, in proportion to their respective demands, without giving any preference to debts due specialities. 26 Barb., App. Dec., 242; 15 Abb. 3 Dem., 28 Hun,375; Second and dend. § 80. If the whole of the estate of such corporation be not dis- anal divitributed on the first dividend, the receivers shall, within one year thereafter, and within sixteen months after their appointment, make a second dividend of all the monies in their hands, among the creditors entitled thereto; of which, and that the same will be a final dividend, three weeks' notice shall be inserted once in each week, in the state paper, and in a newspaper printed in the county where the principal place of business of such corporation was situated. [L. 1821, 141, § 3.] ings there 45 N. Y., § 81. Such second dividend shall be made in all respects in the Proceed same manner as herein prescribed in relation to the first dividend, and in no other shall be made thereafter among the creditors of such cor- 315 poration, except to the creditors having suits against it, or against the receivers, pending at the time of such second dividend, and except of the monies which may be retained to pay such creditors, as herein provided; but every creditor who shall have neglected to exhibit his demand before the first dividend, and who shall deliver his account to the receivers before such second dividend, shall receive the sum he would have been entitled to on the first dividend, before any distribution be made to the other creditors. [The same.] |