7 N.Y.S. 781 | N.Y. Sup. Ct. | 1889
On the 8th day of November, 1884, Nathan D. Wendell, the defendant’s testator, was appointed temporary receiver of the property of the
On the argument it was practically assumed that Wendell’s liability as receiver was similar to the liability of an executor or administrator, and several of the cases cited to sustain this judgment relate to the liabilities of thelatter. Conceding the correctness of this assumption, the Schmittler and Willis Cases, supra, must be regarded as controlling authorities in this case. But, independent of those cases, the other authorities cited are to the effect that the receiver was individually liable to the plaintiff. I think it should be so held, both upon principle and authority. Wendell employed the plaintiff, and he performed the services and made the disbursements for which he seeks to recover. The plaintiff had no knowledge of the directions which the court gave Wendell as receiver, nor of the powers that were vested in him by its orders. The receiver had no principal against whom the plaintiff could maintain an action. Nor could he maintain an action against Wendell’s successor, as there was no contract or privity between them. Navigation Co. v. Railroad Co., 41 N. J. Eq. 187, 3 Atl. Rep. 134. If the plaintiff cannot recover against the estate of Wendell, he has no right of action, and his claim cannot be enforced. A receiver cannot of his own motion contract debts chargeable upon the fund in litigation. While a court may allow expenses incurred by a receiver for the preservation of the property, it is nevertheless the order of the court, and not the act of the receiver, which creates the charge, and upon which its validity depends. Vilas v. Page, 106 N. Y. 451, 13 N. E. Rep. 743. It is no answer to the plaintiff’s claim to say that if it is just and proper the court will allow it, and order it paid. It may have been perfectly proper so far as the plaintiff was concerned and still improper as against the estate. The receiver may have been guilty of some act which would render the allowance of this claim against the estate improper. In such event the plaintiff’s claim would be disallowed, and he compelled to lose his demand, although his action was in all things proper. The plaintiff’s rights under his contract should be dependent upon no such uncertain remedy for their enforcement. He made his contract with the receiver, presumptively, upon his individual responsibility, and the receiver should be required to perform it.
But it is said that the receiver ought not to be held personally liable upon a contract made for the benefitof the estate he represents. Why not? If his action was of doubtful propriety, or if the estate was of doubtful sufficiency, why should not the receiver be liable, if, acting under such circumstances, he obtains the services and property of another? If the estate was insufficient, he knew it better than any other person, and should not have incurred the liability. Under such circumstances the law would not require it of him, and common honesty would forbid his making such a contract at the expense of another. If held to be individually liable, no improper harm can fall upon the receiver, or his estate. If the action of the receiver in making this contract and incurring this expense Was proper and authorized, the demand, when paid, can properly be charged in his accounts, and will be allowed by the court. If the receiver acted improperly, or without authority, in employing the plaintiff and directing him to make such disbursements, then his estate should bear the burden of his unauthorized act, and it should not be cast upon the plaintiff. This is not a case where there was an agreement by the plain
For concurring opinion of Hardin, F. J., see 8 N. Y. Supp. 515.