New York Sec. & Trust Co. v. Saratoga Gas & Elec. Light Co.

• Decision Date: 04 October 1898
• Citation: 156 N.Y. 645,51 N.E. 297
• Parties: NEW YORK SECURITY & TRUST CO. v. SARATOGA GAS & ELECTRIC LIGHT CO. et al.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 645

51 N.E. 297

NEW YORK SECURITY & TRUST CO.

v.SARATOGA GAS & ELECTRIC LIGHT CO. et al.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, appellate division, Third department.

Bill by the New York Security & Trust Company against the Saratoga Gas & Electric Light Company and others. There was a decree of the appellate division (51 N. Y. Supp. 749) reversing that part of an order of a special term which allowed and approved the payment by the mortgage receiver to E. W. Paige, attorney for the sequestration receiver, of the sum of $4,770.22, and overruled the exceptions of the plaintiff to such payment; and also from another order reversing an order which denied the plaintiff's motion for an order directing Paige to pay to the plaintiff $4,770.22, and granted the plaintiff's motion for repayment to it by Mr. Paige of the sum of $3,564.04; and defendants appeal. Dismissed.

The first special term order was entitled in this action with the words, ‘In the Matter of the Final Accounting of Lafayette B. Gleason, as Receiver,’ added. The other special term order was entitled in this action, containing the words, ‘In the Matter of the Final Accounting of Lafayette B. Gleason, as Receiver,’ and also ‘On the Application of Lafayette B. Gleason, as Receiver, and the New York Security and Trust Company, as Plaintiff, to compel Edward Winslow Paige, an attorney of this court, representing the defendant, William V. Reynolds, as receiver, now deceased, to repay $4,770.22, received by Paige, to Gleason, as receiver, or to the plaintiff.’ The record discloses that in March, 1897, a notice of motion was served upon Mr. Paige for an order directing him, as an attorney of this court, and representing William V. Reynolds as sequestration receiver, one of the defendants herein, to repay to the plaintiff, or Gleason as mortgage receiver, the sum mentioned, which was received by Mr. Paige from Gleason as such receiver. This notice was entitled the same as the last-mentioned order. The motion was noticed for a special term to be held before Mr. Justice McLaughlin in the village of Port Henry on Monday, March 15, 1897. Upon the notice of motion there was indorsed a consent by Mr. Paige that the hearing and decision of that application should be had before Hon. Judson S. Landon at his chambers on the 27th of March, 1897. In one of the affidavits read upon the motions it appeared that an application had been previously made to Mr. Justice Stover for an order directing Reynolds, as receiver, or Mr. Paige, as his attorney, to return the amount mentioned, and that Mr. Justice Stover handed down a memorandum stating that the better course would be to leave the question until the final accounting of the receiver. He therefore denied the motion, without prejudice to a renewal upon the final accounting. A notice of motion was also served for an order to discharge the receiver, for the appointment of a referee to take and state his account and to vacate his bond, to be heard at a term to be held at Port Henry on the 15th of March, 1897. The parties, however, consented to the hearing and decision of that motion by Mr. Justice Landon at his chambers on March 27th. The plaintiff also gave notice that it renewed its exceptions to the report of the receiver, and that they would be brought on to be heard at the same time with the hearing of the motion by the plaintiff to compel Mr. Paige to repay the sum of money mentioned, upon the papers on which that motion was to be heard. This motion was also stipulated to be heard before Mr. Justice Landon on the 27th of March, 1897. All these motions were heard together at that time. Upon that day the court, after reading and filing the affidavits and papers upon which all these motions were made, entered two orders. By the first order the court overruled the exceptions of the plaintiff to the accounts of Gleason as receiver, and in all respects approved and stated his accounts according to his reports which had been filed, discharged such receiver from any further duty as such, and vacated and canceled his bond. There were other provisions in that order, which need not be mentioned, as no appeal is taken from them. By the second order the court denied the plaintiff's motion to require Mr. Paige, as an attorney of the court and representing the sequestration receiver herein, to pay to Gleason, as mortgage receiver, the amount already mentioned. From those two orders an appeal was taken to the appellate division, where they were reversed, and the plaintiff's application for repayment was granted to the extent of $3,564.04. These proceedings and orders were entitled in the action for the foreclosure of the mortgage given by the defendants to the plaintiff as trustee. The orders and...