138 N.Y.S. 258 | N.Y. App. Div. | 1912
Lead Opinion
The plaintiff alleges that by an order duly made on the 16th day of October, 1909, in a certain partition action pending in the Supreme Court of this State, he “was appointed Receiver by this Court of certain property of Caroline Barry, deceased, which said property included the lot and four-story brick house known and described as Number Forty-one (41) West Sixteenth Street, City and County of New York,” and duly qualified as such receiver and entered upon and assumed possession and control of said premises; that the defendant company, and the individual defendants, who are two of its directors and officers, in the months of September and October, 1911, excavated its premises adjoining those of which the plaintiff was appointed the receiver, to a depth of more than ten feet below the curb, without taking any steps to support the wall of the building in
The first and second grounds of demurrer are frivolous. It does not appear on the face of the complaint that the plaintiff has not legal capacity to sue. He not only alleges his appointment as receiver, hut alleges that the court authorized him to bring the action. It is now well settled that the sufficiency of the complaint is not presented by this form of demurrer, and that it only raises the question as to whether, in the form in which the suit is brought, it appears by the complaint that the plaintiff had capacity to sue. (Ward v. Petrie, 157 N. Y. 301; Ullman v. Cameron, 186 id. 339; Cohen v. American Surety Co., 123 App. Div. 519; affd., 192 N. Y. 227; Leggett v. Stevens, 77 App. Div. 612,) Here the plaintiff was duly appointed receiver and duly authorized to sue, and, therefore, he had capacity to sue even though he did not have a cause of action. The cause of action is not for damages to the possession of the receiver, hut for the permanent injury to the freehold. The receiver can maintain the action alone, or he cannot maintain it at all, for he cannot maintain it with the tenants in common. If the cause of action is vested in him, he can maintain it in his capacity as receiver; but if it is vested in the heirs, it cannot be said that there is a defect of parties plaintiff, when there is no party plaintiff before the court having a standing to maintain the action or who could join others in maintaining it.
That decision was cited and followed on this point in Stokes v. Hoffman House (supra), and the same rule was in effect declared in Weeks v. Weeks (supra), which was a partition action. In the latter case the court stated the object of the receivership as follows: “The main object of the receivership was to secure the renting and care of the premises pending the litigation, for the benefit of the parties who should be adjudged to be vested with the legal title to the property. The order, therefore, authorized the receiver to lease the-premises, or any part thereof, for a term not exceeding three years from May 1, 1883. * * "x" There can be no doubt, having in view the. object of such receivership, which is to take the care and custody of the property and administer it during the litigation and to hold it to answer the final- judgment in the action, that a lease beyond the customary term, according to the nature of the demised property, which might extend beyond the termination of the litigation, would be an unjustifiable exercise of judicial discretion. * * "x" When such property is in the hands of a receiver, pendente lite, and the termination of the suit is uncertain, it would often result in great loss if the court had no power to authorize a lease for the customary term, except upon the consent of all the parties interested. The receiver is the officer of the court. In virtue of its general jurisdiction the court in a proper case assumes for the time being the care and custody of the property. The receiver represents all interests and under the direction of the court manages the
The learned counsel for the appellant relies on section 716 of the Code of Civil Procedure, which provides as follows: “A receiver, appointed by or pursuant to an order or a judgment, in an action in the Supreme Court, or a County Court, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof.”
He contends that the.receiver took the real estate upon an express trust, which, by virtue of section 449 of the Code of Civil Procedure, would authorize him to maintain any action, for injunctive or other relief, for interference with the property, and to recover any damages to which it is subjected during the receivership. I am of opinion that the provisions of these sections do not aid the appellant. There are, of course, many statutory receiverships, in which the receiver takes the title to the property; but for the reasons already assigned, such is not this case. It is not necessary to express an opinion as to whether or not there was an express trust to the extent of the receiver’s authority, for it would not, in any event, extend to the damages to the freehold.
Ingraham, P. J., and .McLaughlin, J., concurred; Clarke and Scott, JJ., dissented.
Dissenting Opinion
The only question in this case is whether an equity receiver appointed in an action for the partition of real property may maintain an action for damages to the real estate resulting from an unlawful trespass.
I think he may. In appointing the receiver the court took the property in custodia legis, and the receiver is the arm of the court. He is also, I think, the trustee of an express trust within the meaning of section 449 of the Code of Civil Procedure, and as such may sue without joining with him the owners of the property, who are the persons for whose benefit the action is brought. (Donnelly v. West, 17 Hun, 564.) I think that it is inaccurate to say, as was intimated by the court at Special Term, that a receiver in partition is merely a receiver of the rents and profits, for it does not appear that his receivership was so limited. Section 716 of the Code of Civil Procedure provides that “A receiver, appointed by or pursuant to an order or a judgment, in an action in the Supreme Court or a County Court, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition thereof.” This invests him at least with the right to possession, and although in a case like the present the actual title does not pass out of the owners, the receiver does possess, in a certain sense, an ownership at least sufficient to entitle him to hold the property; to protect it from injury, and to'collect the rents and profits. (Iddings v. Bruen, 4 Sandf. Ch. 417; Henning v. Raymond, 35 Minn. 303.) The injury which the defendants are charged with inflicting upon the property was a direct invasion of the receiver’s right of possession. No one, I suppose, would doubt that a receiver appointed to hold property pending a litigation as to its true ownership, would be justified in asking the court to enjoin an act which threatened to destroy or seriously injure the prop
In my opinion the judgment appealed from should be reversed and the demurrers overruled, with costs, with leave to defendants to withdraw their demurrers and answer over upon payment of costs in this court and the court below-
Clarke, J., concurred.
Judgment affirmed, with costs.