103 N.Y. 630 | NY | 1886
It does not appear upon what ground the receiver was appointed, but it may be assumed that the premises were an inadequate security for the mortgage debt, or that the rents were expressly pledged for its payment; but for whatever cause, it is plain the receiver had no power to lessen the fund to which the plaintiff had a right to resort. Such directions might have been given by the court if necessary for the preservation of the property. It was not applied to. The expenses were not incurred nor the repairs made with its permission, and whether, having been made, the court should allow its receiver to reimburse the contractor, was a matter entirely within its discretion, and from its determination no appeal will lie to this court.
The appellant, however, asserts that his right to compensation is given by section 473 of the act of 1882, chapter 410, known as the New York Consolidation Act. It is there provided that whenever there shall be an excavation upon any lot of land in the city of New York, and a party or other wall on adjoining land, standing upon, or near the boundary line, if the person whose duty it shall be to preserve and protect said walls from injury shall neglect or fail so to do after notice from the fire department, the department may take such steps as in its judgment may be necessary to make the same secure, "at the expense of the person or persons owning said wall or building of which it may be a part, and any person or persons doing the said work or any part thereof, under and by direction of said department, may bring and maintain an action against the owner or owners, or any one of them, of the said wall or building of which it may be a part, for any work done or materials furnished in and about the said premises in the same manner as if he had been employed to do the said work by the owner or owners of the said premises."
It may be said that it was the duty of the owner of the lot No. 367 to protect the wall against the effect of the excavation, *634 but the statute is not broad enough to cast that duty upon others, certainly not upon the receiver, who can act only under the order of the court.
We think the petitioner failed to make out a case for the interposition of a court in equity, or a legal claim under the statute. The order appealed from should, therefore, be affirmed.
All concur.
Order affirmed. *635