40 How. Pr. 85 | The Superior Court of New York City | 1870
This action was brought by the plaintiff, as lessor, against the defendant Nichols, as lessee, to recover the possession of real property, upon the ground that the lease had been forfeited for violation of its conditions. The main question in the case was, whether the forfeiture incurred had been waived by plaintiff. Upon the trial, the court directed the jury to find a verdict for the defendants, to which ruling
In the present case, the appointment of the receiver was a provisional remedy in the action, and auxiliary. It was made by the court in the exercise of its discretionary powers, not as a matter of strict right, but purely as a matter of favor to the plaintiff, and is entirely independent of the judgment from which plaintiff appealed, and which, so far as this court is concerned, is a final determination of the actual rights of the parties." Upon a comparison of the language of section 339 of the Code with that of section 86 of 2 Rev. Stat., 607, and a careful examination of the questions decided by the chancellor in Hart v. Mayor, &c. of Albany (3 Paige, 385). I entertain no doubt that tin's court, notwithstanding plaintiff’s appeal from the judgment, possesses the power to redress a wrong .which, as it now appears, has been done to the defendant by the allowance of a mere provisional measure not affecting the merits of the action.
According to the current of the authorities, the entry of the j udgment in favor of the defendants had the effect of ending the functions of the receiver, but the receiver is not discharged thereby. The court may, according to the exigencies of the case, upon good cause sho.wn, either continue or discharge him by a further order, upon an examination of the peculiar facts of this case. I have come to the conclusion that the receiver should be discharged. I hereby appoint James M. Smith, Esq., as referee, to pass the accounts of the receiver, and upon the confirmation of the
Order to be settled on two days’ notice.