Rockwell v. . Merwin
Cases that cite this one
20 later published cases cite this decision.
- Cohen v. Sherman (Appellate Division of the Supreme Court of New York 1952)
- Frank v. Lutton (Appellate Division of the Supreme Court of New York 1944)
- Zechiel v. Firemen's Fund Ins. (7th Cir. 1932)
- Doratio v. Jackson (Appellate Division of the Supreme Court of New York 1916)
- People v. . Flack (N.Y. 1915)
- Caswell v. Copper River & N. W. Ry. (United States District Court for the District of Alaska 1913)
- Bowden v. Jacksonville Electric Co. (Fla. 1906)
- Schlieder v. Dexter (Appellate Division of the Supreme Court of New York 1906)
- Baxter v. Lancaster (Appellate Division of the Supreme Court of New York 1901)
- Rossman v. Mitchell (Minn. 1898)
- Wason v. Frank (Colo. App. 1896)
- Wason v. Frank (Colo. App. 1896)
- In re Beecher's Estate (New York Supreme Court 1892)
- Wakelee v. Davis (U.S. Circuit Court for the District of Southern New York 1892)
- Holmes v. Stietz (City of New York Municipal Court 1884)
- Merchant v. Ottumwa Water Power Co. (Iowa 1880)
- Dubois v. . Cassidy (N.Y. 1878)
- Catlin v. . Grissler (N.Y. 1874)
- Genet v. Davenport (New York Supreme Court 1873)
- Scroggs v. Palmer (New York Supreme Court 1873)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The amendment of the complaint cured any defect in it. And the insertion of the word “ duly,” in the allegation that the plaintiff was appointed receiver, gave him the right to show on the trial all the facts conferring jurisdiction. (Code, § 161.) On the trial he did show facts sufficient to establish that he was regularly, and in due form of law, appointed the receiver of Parrel.
*168 It was necessary that the order appointing him should be filed and recorded in the office of the clerk of the city and county of Hew York. It was shown on the argument at General Term, that this had been done before the commencement of this action. And this cured the defect in the proof before the referee. (Bank of Charleston v. Emeric, 2 Sandf., 718.)
The point made by the appellant, that the plaintiff did not show that the judge who made the order for the appointment of the plaintiff as receiver was the same officer before whom the supplementary proceedings were initiated, was not taken before the referee. Hor does it appear, inasmuch as there is no copy given in the case of the records given in evidence, that the objection, if taken, had any foundation.
After his appointment as receiver, the plaintiff had general authority, by virtue of the then ninety-second rule of the Supreme Court, by a judge of which he was appointed, to commence a suit. Having general power to sue, he could select his tribunal.
.The motion to dismiss the complaint, made at the close of the plaintiff’s case, was properly denied. There had been positive and uncontradicted proof of the agreement between Farrel and the defendant, and of the balance due Farrel thereon. And although the account of Farrel’s services, etc., was from a partial ledger, it had been submitted to the defendant, and was not objected to by him. It is to be inferred easily from the testimony that all the other books of the hotel were in his control, and subject to his inspection at the time when the account was submitted to him.
The other points made by the appellant are upon questions of fact determined by the referee, and are not re viewable here.
The judgment appealed from should be affirmed, with costs to the respondent.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.