Appellant's points. of the county where he resided or had a place of business. Code, § 292. 3d.-That an order for the examination of the judgment debtor should have been made by a judge named in § 292. 4th. That the debtor should have been examined under oath under such order. § 296, Code. 5th.-That the debtor should have disclosed property not exempt from levy and and sale under execution. Re. Edlings, 35 Hun, 367. The appointment can only be made on the evidence in the proceedings. Todd v. Crooke, 4 Sand. 694. The voluntary appearance and examination of the judgment debtor cannot give jurisdiction. Sackett v. Newton, 10 How. 560. The appointment will be discretionary even if the judge has jurisdiction. Dollard v. Taylor, 33 N. Y. Super. Ct. 596. And can only be made by the judge who granted the order of examination. It must be made in the same manner as if by the court under Section 244. Code, § 298. Under that section a receiver cannot be appointed without notice according to the practice of the court, except under peculiar circumstances, demanding immediate attention, appearing by the papers on which the order was applied for. People v. Morton, 1 Paige, 17; Verplanck v. Mercantile Ins. Co., 2 Ib. 438; Sandford v. Sinclair, 8 Ib. 373; Gibson v. Martin, 8 lb. 481; Field v. Ripley, 20 Hun, 26. And in supplementary proceedings only on notice. Kemp v. Harding, 4 Hun, 178; Ashley v. Turner, 22 1b. 226; Barker v. Johnson, 4 Abb. 435; Whitney v. Welch, 2 Abb. N. C. 442; Hohn v. Epstein, 14 Ib. 322. And verbal notice is insufficient. Ashley v. Turner, 22 Hun, 226. The order, therefore, should be vacated because it does not recite any of the facts which confer authority upon the county judge to make the order, to wit: 1st. That the order is made in any action in any court known to the law. 2d. That William Palen was ever appointed the receiver of the prop Appellant's points. erty of Henry Bange, it not being recited in the order that Henry Bange was the judgment debtor. 3d. That any execution had been issued upon the judgment to the sheriff of any county. 4th. That any transcript of the judgment has ever been filed in Kings county where the examination was had. 5th. That the debtor resided in Kings county. 6th. That any execution had been returned unsatisfied. 7th. That the examination was completed, on the contrary it appears that it was not. 8th. That the examination was under oath as required by § 296 of the Code. 9th. That the debtor was present in the court when the motion was made for a receiver or that he had any notice of such motion. He positively denies that he was present or had any notice or knew of such appointment at the time. 10th. That the proceedings were being had under the provisions of the Code relating to supplementary proceedings. 11th. That the order was made on the motion of the judgment creditor or any other person. 12th. That the order directs a bond to the clerk of this court," it not appearing what court it referred to; to be filed in the Kings county clerk's office. According to law and the practice of the court the bond should have been filed in the clerk's office of the Superior Court, of the city of New York, or in the clerk's office "of the county of New York." That order is filed in the county clerk's office. There is no other paper of of any kind filed with it by which the clerk or any other person may learn who is the judgment debtor referred to in the order. The original order was never filed in the office of the clerk of the county of New York. The title to the property therefore never vested in said receiver, and all his actions as such should be set aside. The acts of the receiver, including all actions in law or in equity, should be set aside upon the ground that he has not given such a bond as the Opinion of the Court, by SEDGWICK, Ch. J. order of the judge and the practice require. The receiver had no power to act until he had given a bond, and was not invested with title to judgment debtor's property. Edwards on Recr., 89; 21 How. 469; Thomp. on Prov. Rem. 477-480; 26 Barb. 569, etc. Nelson Merrill, attorney, and William C. Holbrook of counsel, for respondents, argued: The alleged defects in the papers in the proceedings by which Palen was appointed receiver of the property of the above-named Henry Bange are not jurisdictional defects, but are mere irregularities. See Respondent's Points on Appeal to the General Term, Second Department; Opinion of DYKMAN, J., at said General Term. All these questions have been adjudicated and passed upon, not only in the proceedings instituted by said Bange, before the county judge of Kings county and on his appeal to the general term of the second department. References last above cited; See also Opinion of PATTERSON, J., Palen. Bushnell, 18 N. Y. Civ. Pro. Rep. 56. But the same were also litigated and passed upon by the supreme court in this department, on the motion to revive and continue the action against the executors of Bushnell. See Opinion of BRADY, J., Palen, Receiver, v. Bushnell, 51 Hun, 423, Dismissal of Appeal, 115 N. Y. 655. The same were also adjudicated on the motion of Bushnell's executors for leave to file supplemental answer in the supreme court. See Opinion PATTERSON, J., Palen v. Bushnell, 18 N. Y. Civ. Pro. Rep. 56. BY THE COURT.-SEDGWICK, Ch. J.-The order that the motion below asked to be set aside was made in 1862. The principal objection to it was that it did not appear that the judge allowing the order had jurisdiction to make it. The argument was based Opinion of the Court, by SEDGWICK, Ch. J. upon the assertion that the face of the order did not recite the existence of facts necessary to jurisdiction. The moving papers did not set out the whole of the record of the supplementary proceedings. The order alone was set out. In some portions of those papers, and in the opposing papers, it appeared that the jurisdictional facts had existed at the time of the making of the order. In the opposing papers. it was shown that the whole of the record disclosed that the necessary facts existed and had been properly averred. The power of the judge was derived from section 298 of the Code of Procedure. The judge having power and jurisdiction to appoint a receiver, all other directions given in the order as to bond and its character, and matters of a like kind, were to be reviewed if they were erroneous, by appeal, or if irregular, by motion. The appellant has been unsuccessful in his former attacks upon the order so far as he has appealed. The irregularity as to the bond was corrected by the order now appealed from. Soon after the order was made the receiver began an action to set aside as fraudulent a transfer made by the judgment debtor to third parties. The judg ment debtor was made a defendant. He had in that action an opportunity to contest, if not the appointment of the receiver, yet whether by the terms of the order or from what had been done or omitted to be done the receiver had become vested with the cause of action or the right to begin an action upon it. It may be taken for granted that he did not ask, by his motion below, that the receiver should do those things which, being done, would give him the right to bring the action. So far as he asked that the appointment should be set aside he was not entitled to succeed. It is not a substantial objection to the order that the title of the action named, "The N. Y. Superior Court," instead of "The Superior Court of the city Statement of the Case. of New York." The words used, as they were used. in the papers identified the court. I do not find that, by the Code of Procedure, notice to the judgment debtor was a condition precedent to the exercise of the power to appoint. Whether or not the judgment has been paid is a matter to be determined in the action of the receiver who obtained by his complaint a lien upon such equitable assets as were described in it. If it be assumed that the receiver is not a resident, and that is a reason why he should be removed, there should be no removal without that being accompanied by a substitution of a qualified receiver in his place. The order should be affirmed with costs. TRUAX and DUGRO JJ., concurred. EAST RIVER ELECTRIC LIGHT COMPANY, APPELLANT v. HUGH J. GRANT, AS MAYOR, ETC., ET AL., RESPONDENTS. Board of electrical control, powers of-Fermit to string wires on poles is a mere license revocable at any time and subject to the rules and regulations of the Board. The board of electrical control authorized plaintiff to string four wires on existing poles in Sixth avenue, from 18th street to Carmine street, in September, 1888. At the time this permit was granted the Metropolitan Telephone and Telegraph Company and the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with those companies the plaintiff placed their four wires on such poles. Subsequently, the latter companies, having no further use for these poles, abandoned them, and the board of electrical control revoked plaintiff's permit to use the poles for its wires, and directed the defendants, Gilroy, commissioner of public work's and Cummings, superintendent of the bureau of incumbrances, to remove the poles and the wires. Plaintiff commenced an action and sought and obtained a temporary injunction restraining the |