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Rothman v. Harmyl Inn Inc.

Decided: April 12, 1960.

HARRY ROTHMAN, PLAINTIFF-RESPONDENT,
v.
HARMYL INN, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.

Haneman

[61 NJSuper Page 76] Plaintiff filed a complaint alleging that he was a stockholder of Harmyl Inn, Inc., a corporation of the State of New Jersey; that he is the owner of

more than 10% of the capital stock of said corporation, holding 66-2/3 shares out of a total issue of 267-1/2 shares of said stock.

Paragraph 9 of the complaint reads:

"9. The business of said corporation * * * has been and is being conducted at a great loss and greatly prejudicial to the interest of its creditors and its stockholders so that its business cannot be conducted with safety to the public and advantage to the stockholders."

Paragraph 14 of the complaint reads:

"14. The plaintiff asks that this Court appoint a Receiver under the provisions of the statute in such case made and provided * * *."

The demand for relief reads as follows:

"(A) Adjudicating that the business of the defendant, Harmyl Inn, Inc., is being conducted at a great loss, and greatly prejudicial to the interest of its creditors and stockholders, and

(B) Issuing an injunction to restrain the said company, its directors and its officers, agents and employees from exercising any of its privileges and franchises and from collecting or receiving any debts that become due, and from selling, assigning, transferring any of its money, lands, tenements, contracts or effects, except through a receiver appointed by this Court, and until this Court shall otherwise order.

(C) Appointing a receiver with all the powers that receivers have under the statute in such case made and provided (R.S. 14:14-3 et seq.), and vesting the said receiver with full power and authority provided for by said Statute, to take charge of the assets of the defendant, wheresoever located, and in his discretion to continue the business, and to dispose of any or all of its assets under the direction of this Court.

(D) Directing the defendant to make full disclosure of all of its assets.

(E) Granting such other and further relief as may be necessary."

Plaintiff's affidavit, attached to the complaint, reads:

"16. I ask that this Court appoint a Receiver under the provisions of the statute in such case made and provided * * *."

Upon an ex parte application by the plaintiff, a custodial receiver was appointed and an order to show cause was granted on July 6, 1959, which reads, in part:

"* * * why judgment should not be rendered for the relief sought in said complaint, adjudging that the business of the defendant corporation has been and is being conducted at a great loss and greatly prejudicial to the interest of the plaintiff, creditors and stockholders so that the business cannot be conducted with safety or to the advantage of the plaintiff, its creditors and stockholders, and why an injunction should not issue pursuant to the statutes of the State of New Jersey, in such case made and provided; * * *

AND IT IS FURTHER ORDERED AND ADJUDGED that said defendant corporation * * * show cause before this Court why the said Custodial Receiver should not be appointed as permanent Receiver under the provisions of the Statute and why the plaintiff should not have such other further relief as may be just: * * *."

Defendant moved to dissolve the restraint imposed by the order of July 6, 1959.

After argument, the trial court entered an order on July 22, 1959 which reads, in part:

"This matter being opened to the Court on the return day of an Order to Show Cause Why a Custodial Receiver should not be appointed a permanent receiver under the Statute , * * * [be] appointed Receiver under the Statute and under the General Equity powers of this Court, of the creditors and stockholders of the defendant corporation with all powers incident thereto, and with power to operate the business of the defendant corporation as operating receiver until the further order of this Court, and that he do perform all the duties imposed upon him by the statutes and the law of the State of New Jersey in such case made and provided; * * *." (Emphasis supplied.)

Defendant appeals from the foregoing order. Plaintiff moves to ...


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