Troy Sav. 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 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 cláim of the plaintiff under the mortgage set out in the complaint 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.