| N.Y. App. Div. | Jul 1, 1900
-It seems now to be settled law that where a receiver takes prop-, ert-y that belongs to a third party, although he may do so innocently in the belief that the property belonged to his trust, he is liable for conversion and may be sued as of right by the person whose property he has converted. (Beach Receivers [Alderson’s ed.], § 663 ; Hills v. Parker, 111 Mass. 508" court="Mass." date_filed="1873-03-15" href="https://app.midpage.ai/document/hills-v-parker-6417190?utm_source=webapp" opinion_id="6417190">111 Mass. 508; Barton v. Barbour, 104 U.S. 126" court="SCOTUS" date_filed="1881-11-14" href="https://app.midpage.ai/document/barton-v-barbour-90434?utm_source=webapp" opinion_id="90434">104 U. S. 126 Kinney v. Crocker, 18 Wis. 74" court="Wis." date_filed="1864-01-15" href="https://app.midpage.ai/document/kinney-v-crocker-6599114?utm_source=webapp" opinion_id="6599114">18 Wis. 74.) Under these authorities after the; demand by the appellants and a refusal by the temporary receiver to deliver the moneys so received, an action against him personally might have been brought without the permission of the court. To
Thereafter, upon an accounting of the temporary receiver, these appellants made themselves parties thereto and demanded this money. In that proceeding the court ordered the moneys to be retained by the permanent receiver. It is claimed that this order is without effect on the ground that where a temporary receiver thereafter becomes permanent receiver an accounting by him as temporary receiver is not binding upon creditors not noticed. This rule is without application in the case at bar because these creditors had made themselves parties to the proceeding. Whether or not by this order these appellants have become estopped in any other proceeding, the property is now held by the receiver under the direction of the court without authority to dispose of the same except by its permission. Where property comes into the hands of a court officer by an order or decree of the court, the court will protect its officer from actions at law. In Parlter v. Browning (8 Paige Ch., 388" court="None" date_filed="1840-05-19" href="https://app.midpage.ai/document/parker-v-browning-5548492?utm_source=webapp" opinion_id="5548492">8 Paige, 388) it is held : “ If a receiver takes possession of goods under the express •directions of the court, or where the master has decided that the goods are in the possession and under the control of the defendant, and has directed the defendant to deliver the possession to the receiver, the court will assume the exclusive jurisdiction of the subject, and will not suffer the receiver to be sued at law for taking • such goods.” In 2 Story’s Equity' Jurisprudence (§ 833a) it is said: “ In the next place, when such a receiver is in possession under the process or authority of the court in execution of a decree or decretal order, his possession is not to be disturbed even by an •ejectment under an adverse title without the leave of the court. For liis possession is deemed the possession of the court; and the court will not permit itself to be made a suitor in a court of law. The proper and usual mode adopted under such circumstances is for the party claiming an adverse interest to apply to the court to be permitted to come in and be examined pro interesse suoIn section 891 it is said : “ Courts of equity will not only grant an injunction restraining suits at law between parties upon equitable circumstances, but .they will exercise the same jurisdiction to protect their own officers who execute their processes against any suits In-ought against them for acts done under or in virtue of such processes. * * *
. Inasmuch then as the receiver now holds this property under an order of the court, made in a proceeding to which these appellants, were parties, he is entitled to the protection of the court and can-hot be attacked without permission.
The order should, therefore, be affirmed.
■All concurred.
Order affirmed, with ten dollars costs and disbursements.