Strauss v. Casey Machine & Supply Co.

MAGIE, CíIAlSrCELLOR.

Upon the hearing of this order Jeremiah Casey presented a voluminous document, intended,' it is presumed, to present his objections. An examination of it discloses no objection except such as could have been urged in this court against the making of the decree of insolvency, or upon an appeal from that decree, or such as were and could have been presented under the order to show cause obtained by him on October 18th, 1900. All those matters have been considered and adjudicated upon, and the objections are not pertinent upon the present application.

Other exceptions were filed by a solicitor of this court for Bertha Engelking, formerly Bertha Ehard, claiming to be a stockholder of the insolvent corporation. She excepts (1) because the allowance claimed for the receiver’s personal expenses is excessive; (2) because debts of the insolvent company do not appear to have been paid; (3) because the allowance claimed for fees paid to one Brown as counsel for the receiver is not shown to have been an allowance proper to be made; (4) because the receiver does not show that certain of the assets, consisting of book accounts against various parties, have been éollected, or were uncollectible; and (5) because the receiver has not enforced the liability of the stockholders of the company for their stock, or such sums as remain unpaid thereon.

It is contended that the receiver is not entitled to a discharge under these circumstances.

*22I think these exceptions, if presented by a person interested, require the receiver’s account now presented to be passed upon by a master.

The files of the court show that ten out of one thousand shares of the stock of tire insolvent corporation were held by J. Ehard, Jr., on which $850 only has been paid, leaving $150 due. The exceptant claimed to be a representative of said stockholder, who has since deceased. Upon a reference and proof of her being entitled to said shares, her exceptions must be considered.

While I regret to be obliged to protract this litigation by a reference, and upon exceptions which, there is reason to suppose, may result, if successful, in a very small and perhaps infinitesimal benefit to exceptant or to any stockholder or creditor, yet I am constrained to say that the receiver’s account is not presented so as' to require confirmation against objections. The allowance he claims for personal expenses is not accompanied by a sworn voucher of their actual payment. The allowance claimed for payment of counsel fees to Mr. Brown is supported by no voucher or proof. It is within the knowledge of the court that the receiver was appointed ancillary receiver in the State of Uew York, where the property of the insolvent corporation was, and there is good ground to infer that this payment to counsel was in respect to litigation in that state, extending over a number of years. But a court cannot discharge from his trust a receiver, except upon an accounting.

It may be further suggested that a receiver ought not to be discharged until he discloses whether there are debts of the insolvent corporation remaining unpaid, and whether any more of the assets have been or could have been collected for the payment of debts, and also whether the receiver in this case was bound to enforce the liability of the stockholders for the amounts unpaid upon their stock.

The result is that an order of reference will be made, but the order will be SO' made as to exclude every matter adjudicated upon February 1st, 1901, by the discharge of Casey’s order to show cause and by the confirmation of the master’s report upon the previous accounts of the receiver.