Opinion
December, 1922 (Received February, 1923).
William H. Hotchkiss, for creditors.
Burlingham, Veeder, Masten Fearey, for Sir Henry Grayson.
Barry, Wainwright, Thacher Symmers, for official liquidator, appearing specially.
Rumsey Morgan, for Carpinter Baker.
C.C. Fowler, for superintendent of insurance.
I think the motion should be denied. In the first place, I have considerable doubt whether the summons and complaint were validly served. In the absence of express authorization, it seems dangerous to hold that a clerk in the office of the superintendent of insurance could effectively receive and admit service of process at a time that his superior had been publicly directed to take possession of the defendant's assets for the benefit of existing American creditors under an order which restrained the commencement or prosecution of any litigation. In any event, the attempted service of the summons and complaint and the attempted service of the attachment were in direct violation of the injunction. The attorneys for the plaintiff acquit themselves of any willful disrespect to the court by pleading ignorance of the terms of the order, although they admit knowledge of the pendency of the liquidation proceedings and that the superintendent of insurance had been directed to take over the assets under section 63 of the Insurance Law. It is suggested that the order was too broad, as such a sweeping injunction is authorized by the section referred to only in the case of domestic corporations, and not in the case of foreign corporations. Even if that be true, as long as the order was in force it had to be obeyed. Erie Railway Co. v. Ramsey, 45 N.Y. 637; Matter of Empire State Surety Co., 164 A.D. 586 . But I do not consider that the order was too broad. Section 63, subdivision 5, expressly declares the powers and duties of the superintendent to be the same as those of an ancillary receiver of a foreign corporation. It is well settled that a court may protect a receiver against actions brought without its consent. Matter of French, 181 A.D. 719; Woerishoffer v. North River Const'n Co., 99 N.Y. 398.
No leave of court having been obtained, the action of Carpinter Baker was a contempt, if not a willful contempt, and I do not think they should be allowed to profit by it through granting the leave nunc pro tunc. The official liquidator in England has only now been informed of the action, as the superintendent of insurance appears to have rested on the invalidity of the service, and he ought to have a full opportunity to be heard, at least in regard to the attachment. Grayson claims prior rights on account of his mortgage. Possibly the court may think favorably of an application to attach the surplus in favor of a bona fide creditor in this jurisdiction where there has been no opportunity to file a claim. Thornley v. Walsh Co., 200 Mass. 179; Fletcher Cyc. Corp. 9749, 9792; Dunlop v. Patterson Fire Ins. Co., 74 N.Y. 145. See, also, Martyne v. American Union Fire Ins. Co., 168 A.D. 380. But that question need not be determined now.
Motion for leave to enter judgment denied, with ten dollars costs, without prejudice to an application for leave to commence a new action and levy an attachment on the surplus in the hands of the superintendent of insurance, provided the existing summons, complaint and warrant be deemed withdrawn and notice of the application be served upon the attorneys for the parties opposing this motion.
Ordered accordingly.