SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 29, 1968
SYLVIA SANDFIELD, RESPONDENT,
LOUIS GOLDSTEIN ET AL., APPELLANTS
Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from an order of the Supreme Court at Special Term entered in Fulton County, appointing a Receiver of the property of Thruway Outdoor Theatre Corp. in a pending shareholder's derivative action. Prior to the obtaining of an order to show cause for the appointment of a Receiver, a decision had been handed down by a Referee which determined that the appellant Goldstein as of March 31, 1964 had misappropriated some $18,952.82 belonging to the appellant corporation and directed that judgment be entered for the repayment of such amount. The Referee also directed a judgment enjoining Goldstein's continuance as manager. A judgment had not been entered as of the date of the entry of the order appealed from. The order does not specify as to whether the Receiver appointed is a permanent Receiver or a Temporary Receiver. We find that the order appoints a Temporary Receiver pending the outcome of the litigation and accordingly, such of the appellants' arguments in this court as question the power of Special Term to appoint a Permanent Receiver are not applicable to this appeal. "The power to appoint a receiver of the property of a corporation is inherent in the Supreme Court, and was recognized in Hegewisch v. Silver (140 N. Y. 414, 420)." (Popper v. Supreme Council, 61 App. Div. 405, 406-407; see, also, Matter of Burge [ Oceanic Trading Co.], 203 Misc. 677, 682.) Assuming, but not conceding, that a Referee has the power to appoint a Temporary Receiver (CPLR 4301), that fact would not prevent the exercise of such power by Special Term. While the complaint demanded the appointment of a Receiver, no application was made to the Referee in this case for the appointment of a Temporary Receiver. The findings of the Referee as to waste and mismanagement were sufficient to warrant the exercise of such power by Special Term pending a final judgment in the action. We decide no other issue.
Order affirmed, without costs.
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