Troy Savings Bank v. Morrison

The court below, on the motion of the defendant Elnathan Sweet, as receiver of the Lebanon Springs Railroad, for leave to interpose a defense to the action, authorized him to employ counsel to advise him as to a defense, and to defend the same if-so advised. In other words, the court referred the question submitted to it, as to the interposition of a defense, to the receiver’s attorney instead of passing on the application itself.

The order was unobjectionable, as far as it authorized the receiver to take the advice of counsel as to a defense, but was improperly granted as far as it allowed the receiver’s attorney to determine whether a defense should be interposed. Whether or not the receiver should litigate the claim of the plaintiff‘under the mortgage, set out in the *424complaint, was a question for the court to pass upon, on the presentation to it of a proper petition or affidavit.

The order should be modified in pursuance of this memorandum, without prejudice .to. the right of the receiver' to apply to the court for leave'to defend the action, on a proper petition showing reasons therefor, without costs to either party.

All concurred.

Order modified as per memorandum, without costs to either party.