Fid. Sav. & Loan ass'n v. Citizens Tr. & Sav. Bank

SHAW, J. The defendant appeals from the judgment. The complaint is voluminous but, in effect, it r sets forth a causeo of action against the defendant for damages for wrongfully, unlawfully, and oppressively seizing and holding possession of a hotel known as Hotel Schuyler, which was then a going concern and was then the property of the plaintiff. Judgment was given in favor of the plaintiff for the sum of $1,503.59, which the court found the defendant had received from the patrons of the hotel during the time it was in possession thereof, and for an additional sum of five hundred dollars allowed as exemplary damages.

In support of the appeal it is claimed that the evidence: does not support the findings or judgment in several material particulars. The decision of these points depends in great measure on questions of law, there being little conflict in the evidence.

[691]The main defense is that the defendant was lawfully authorized to take and hold possession of the hotel under and by virtue of an order of the referee in bankruptcy of the United States district court appointing it receiver of the assets and property of Hotel Schuyler, a corporation, which had been adjudged a bankrupt on its own petition by said court on May 24, 1916. The evidence shows that said corporation was duly adjudged a bankrupt on that day; that the matter was duly referred to the referee in bankruptcy, and that the referee, on May 26, 1916, by an ex parte order, on the petition of alleged creditors of said bankrupt, made an order appointing the defendant receiver of the estate of said bankrupt, authorizing it as such receiver “to take possession of, hold, preserve, care for, secure, and inventory the property of said brankrupt estate until the appointment and qualification of the trustee hereinafter to be chosen, and with the further authority to collect all accounts receivable of said bankrupt," and to operate the business of said bankrupt.

Under the authority of this order the defendant, on May 27, 1916, took from the plaintiff the possession of said hotel and held possession thereof until June 12, 1916, on which day it delivered possession thereof to one Levin, who had been elected trustee in bankruptcy of said bankrupt corporation. On June 14, 1916, the trustee, in pursuance of an order of said United States district court, restored to plaintiff the possession of said hotel. During the time the defendant held possession as aforesaid as receiver it conducted the hotel business therein and in so doing took and received money belonging to the plaintiff amounting to $1,503.59, which it has not returned or repaid to the plaintiff.