57 N.Y.S. 892 | N.Y. App. Div. | 1899
In August, 1896, an action was brought by creditors and others, as plaintiffs, against the Kings County Elevated Railway Company.
The defendant receiver is a mere temporary receiver, having the powers and duties prescribed by section 1788 of the Code of Civil Procedure. As the court say in the case of Decker v. Gardner (124 N. Y. 834, 338): “ This particular jurisdiction has been extended to and is frequently exercised upon the foreclosure of mortgages upon railroads, and receivers of such property are charged with the duty of the operation of the road pending the foreclosure suit, to the end that the value of the property, which necessarily depends largely upon the continuance of its business, may not be depreciated, and also to the end that its income may not be diverted to the payment and satisfaction of debts which are - not liens upon the property. . * * * They do not represent the corporation in its individual or personal character, nor supersede it in the exercise of its corporate powers, except so far as the mortgaged property is concerned.” There is nothing in the order appointing the receiver which authorizes him to pay any of the debts of the corporation, and, as is aptly said in the case of Franklin Trust Co. v. N. A. R. R. Co. (11 App. Div. 249, 257), “ Even though he is, for the purpose of such preservation, required to continue its operation, he is not thereby invested with any power or duty to ascertain who are its creditors, and to provide for their payment.” The case of The Metropolitan Trust Co. v. T. V. & C. R. R. Co. (103 N. Y. 245) seems to be an authority for the conclusion reached by the court below. • ■
We conclude that the order- appealed from should be affirmed, with costs.
All concurred, except Goodrich, P. J., not voting.
Order affirmed, with ten dollars costs and disbursements.