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IN RE WAGENFOHR

DISTRICT COURT, E.D. NEW YORK


May 9, 1941

In re WAGENFOHR

The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

This is a motion for an order vacating and modifying a restraining order of this Court made on March 12, 1941. The restraining order is in the usual form, it restrains the judgment-creditor from taking any further proceedings or steps to collect the judgment obtained by the judgment-creditor against the bankrupt.

The bankrupt is a resident of Nassau County, State of New York, and was such at all times.

 Subdivision 2 of Section 807 of the Civil Practice Act of the State of New York requires that a certified copy of the order appointing a receiver of the judgment debtor's property be filed in the office of the clerk of the county in which the judgment debtor resides.

 Title in the receiver in supplementary proceedings vests in the receiver only on filing the order of his appointment in the county of the debtor's residence, in which event title relates back to the date of giving notice of application for the appointment of a receiver.

 In a case where the order was filed in the county of the debtor's residence before the filing of the petition in bankruptcy, a receiver in the State Court was entitled to the fund as against the trustee in bankruptcy. See In re McAllister, 2 Cir., 7 F.2d 9.

 It appears that the receiver has not complied with the provisions of the Civil Practice Act of the State of New York. The motion to vacate is therefore denied.

 Settle order on notice.

19410509

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