New Cases Selected Chiefly from Decisions of the Courts of the State of New York Volume 11 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1879 edition. Excerpt: ...v. North America Life Ins. Co. ing to do. That action this motion seeks to enjoin and restrain. H. W. Peckham, for the receiver and motion. Addison Brown Stanley, Brown & Clark, attorneys), for Benjamin Ries, opposed.--No person can be enjoined in a cause to which he is not a party (1 Barb. Ch. 631; 19 How. Pr. 54; Van Sanf. Eq. PI. 119; 4 Paige, 439; 10 Abb. Pr. 472; 5 Bosw. 703; 16 Yes. 338). The motion should be made in the action sought to be enjoined (1 Barb. Ch. 619; 1 Hoff. Ch. Pr. W-r 2 Paige, 66; 11 How. Pr. 366; 9 Abb. Pr. JT. S. 37; 54 iV. Y. 463). An injunction granted on this motion would be of no binding force, Ries not being a party (Fellows v. Fellows, 4 Johns. Ch. 25; Iveson v. Harris, 7 Ves. 257; 1 Barb. Ch. Pr. 633; 13 Wend. 642; Clarke, 34; 32 How. Pr. 51; 19 Barb. 356; 9 How. Pr. 425): The only exception to this rule is the case of a servant or agent of a defendant (1 Duer, 483, 4; 2 R. S. 534). The court has no authority in either of these two special proceedings to issue an injunction on Ries' suit on motion (Code Civ. Pro. 602; Batterson v. Finn, 32 How. Pr. 503; H. S. 56, tit. 4, c. 8, Part III). Legal proceedings are not allowed by a court of equity to be conducted by a receiver except upon neglect by the proper parties (Edwards' Receiver, 158; Parker v. Dunn, 8 Beav. 497; Ireland v. Eade, 7 Id. 55). As to the mode whereby creditors shall be heard, there is no difference in principle, whether it be by order in this special proceeding, or by action brought on leave. In this case, it should be by action, because less embarrassed with doubts than the other mode (L. 1853, c. 463, 11, 17; 2 H. S. 464, 42; Mann v. Pentz, 3 N. Y. 415; 59 Id. 163; Matter of Continental Ins. Co., 4 N. Y....