#### Matter of the Voluntary Dissolution of the Grand Central Bank. Patrick H. Treacy, Plaintiff, *v.*Anthony Ellis et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

1.- Estoppel—-Banks.

A stockholder who, upon the basis of proceedings dissolving a bank, has obtained an order .allowing him to intervene in proceedings to reach certain newly-discovered assets of the bank and to prove his claim therein, cannot subsequently attack the dissolution proceedings as void.

3, Receivers—/When a discharged receiver will not be reinstated to earn fees. ■ •

A receiver of a bank, who has been finally dischárged, will not be allowed to intervene in proceedings to reach newly discovered assets of the bank and to receive fees thereon, as he would have no authority to receive or pay out the fund and therefore could earn no fees.

Motion by a stockholder to vacate the judgment dissolving the above-named corporation. . ,

Motion by the receiver for leave to intervene as a party in the proceeding second above entitled against a certain fund discovered since his discharge.

Henry B. Heylman (Raphael J. Moses, of counsel), a stockholder and petitioner in the first above-entitled proceeding, in person.

McCrea, Somerville *&*Taylor, for receiver and petitioner in the proceeding second' above entitled.

W. F. S. Hart (Oscar F. G. Megie, of counsel),, for Grand Central Bank.

Benj. T. Kissam, for James P. Brown, judgment debtor.

Giegerich, J.

If the dissolution proceedings were void for the reasons pointed out by the petitioner Moses, which I am not *117thoroughly satisfied to hold, still he is in no position to assert the invalidity, since he has obtained an order of this court permitting him to intervene in a proceeding to reach certain lately discovered assets of the bank and to prove his claim, the order having been based upon the dissolution proceedings, the record of which was made the foundation of that'motion, at the petitioner’s instance) according to the recitals of the order. Having recognized the dissolution for the purpose of obtaining an order of the court, for his advantage, he cannot now assume a directly inconsistent position and attack that dissolution. As to the receiver’s motion for leave to intervene in the proceedings against the fund which has been discovered, I think that the application is without substantial foundation. The receiver has accepted his final discharge,, and yet his claim is that he should have his fees as upon the distribution of this fund. He could not earn these fees now, since he is not receiver, and so he could not receive and pay out the fund (New York *&*W. U. Tel. Co. v. Jewett, 115 N. Y. 166, 168; Woodruff v. Jewett, id. 267, 275), and if some of the parties interested did in fact fail to divulge the existence of these assets, the only result was that the receiver took his discharge without having performed services in relation to the concealed fund, and so earned no further fees. I find no reason for holding that he had an interest which calls for protection, under these circumstances. Motion to vacate judgment of dissolution denied, with $10 costs. Receiver’s motion denied, without costs.

Motion to vacate judgment denied, with $10 costs, and receiver’s motion denied, without costs.