Shrady v. Van Kirk — 51 A.D. 504

Majority

p. 504

George F. Shrady, Plaintiff, v. Anna B. Van Kirk and Others, Defendants. Knickerbocker Trust Company, as Receiver, Appellant; Aaron O. Whaley, Respondent.

Headnote

A receiver of rents, eta., of land — leave to sue him'on a claim for commissions for the sale of the land, not granted — cause of action.

.A petition for leave to sue a receiver, appointed to collect tlie rents, incomes,, issues and profits of certain real property during the pendency of an action,, alleged that the receiver was appointed for George, John and Jacob Shrady,. as executors and trustees of Maria Shrady, deceased; that the petitioner, a real estate broker, informed George Shrady that one W. H. Roe had made him an offer for real estate belonging to the estate of the deceased, and requested him to write the -.petitioner in regard thereto; that such executor made no reply to the petitioner hut sent an agent to Roe," and that fifteen months prior to the appointment of the receiver a contract for the sale of the property was. ■, entered into between “ John, Jacob and George Shrady, executors, and Emma,

p. 505

P. Roe, wife of said W. H. Roe;” that the petitioner was entitled to a commission upon the sale and that he had demanded payment thereof from the receiver who had possession of the property.

Held, that an order granting the prayer of the petition was improperly made; That the receiver was a bare custodian of the property for safe keeping, did not acquire title to it and did not represent the Shradys either personally or as executors and trustees;

That if the petition stated a cause of action it was based upon the contract made by the Shradys, as executors, upon which they were personally liable.

Qucere, whether the petition did state a cause of action against any person either in his personal or representative- capacity.

Appeal by the Knickerbocker Trust Company, as receiver in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of - February, 1900, granting leave to Aaron O. Whaley to sue the Knickerbocker Trust Company as receiver of the rents, incomes, issues and profits of certain real estate during the -pendency of the action.

Barclay E. V. McCarty, for the appellant.

Charles H. Gould, for the respondent.

By the petition in this proceeding leave, is sought to bring an action against a receiver upon the theory that such receiver is the representative of certain parties which the petitioner claims are. liable to him upon a contract express or implied. The court below granted such leave, and from the order granting it the receiver appeals. The order appointing the receiver shows it to have been a receivership pendente lite to take the rents, incomes, issues and profits of real estate, the subject-matter of the action in which the receiver was appointed. It is well settled that such a receiver is limited in liability and character to the performance of the acts which he is appointed to do. He takes charge of the fund or property during the pendency of the action for the purpose of securing it, in order that it may be ready for -such' appropriate disposition as the final determination may require. Such receiver does not acquire title to any property, nor is the title to the property changed ’ by reason of his appointment. He is simply entitled to the possession of the prop

p. 506

erty as an officer of the court. (Keeney v. Home Ins. Co., 71 N. Y. 396 .) Such being the status of the receiver, we come to consider the petition in order to see upon what basis of right the petitioner claims legal standing to maintain the action which he seeks to bring. By the petition it is averred that the receiver was appointed on the 8th day of February, 1898, of George, John and Jacob Shrady, as executors' and trustees of Maria Shrady, deceased ; that the petitioner is and wa's engaged as a real estate agent in the. borough of the Bronx, city of Hew York; that abqut the 28th day of May, 1896, the petitioner wrote George Shrady, one of the executors, a letter stating that one W. H. Roe had made him an offer of $5,000 for certain real estate belonging to the estate of the deceased, and requesting such executor to write the petitioner in regard thereto; that the petitioner never received any reply to such let ter; that thereafter, as he is informed and believes,' said executor sent, or was instrumental in sending, one Edwin Clark to Roe ; that about October, 1896, a contract between the estate of the deceased, “ John, Jacob and George Shrady, executors, and Emma P. Roe, wife of said W. H. Roe, was entered into for the sale and purchase ” of the property mentioned in the petitioner’s letter for. the consideration of $6,500; that thereafter the petitioner wrote Jacob Shrady what he had before written to George about the property, and what he understood about the contract; that the petitioner was entitled to a commission, stating its amount; upon information and belief, that the receiver has possession of the property, and that a demand has been made upon the receiver for payment of commissions, which it ignores. Then follows an • averment of merits, and prayer for leave to sue.

■There are several reasons why the prayer of this petition should not have been -granted, and the order should not have been made.. The petition shows upon its face that the claim arose, if it exists at all, at least fifteen months prior to the appointment of the receiver. The receiver has taken title to no property of the estate; it does not represent the Shradys either personally or as executors or trustees, and it can have no relation to the ■ contract upon which the cause of action is based so long as its present position remains'unchanged. It has no more interest in, or relation to, the transaction which lies at the basis of this proceeding than any other stranger, nor could it

p. 507

have by virtue óf this receivership, as it represents nothing connected therewith. The bare custodian of property for safe keeping does not represent those persons who have the legal title thereto. Much less does he stand, as their personal representative, responsible for the fulfillment of their personal contract, nor does he represent them in their trust relation. This receiver stands as the representative of the court, holding funds in the hands of thé court, and can be subject to no action or proceeding, except in reference to the fiduciary relation which it occupies. Whatever the thing which is attempted to be set out in this petition be called, it is evident that no contract was made .which is enforcible against the Shradys as trustees of the estate, as such is not the averment of the petition. Its allegation is that the contract was made by those persons as executors, and that the petitioner contracted with them in such capacity, if he contracted with them at all. For contracts made-by executors, they are personally liable.' (Ferrin v. Myrick, 41 N. Y. 315 .) There is a distinction between executors and trustees, although both offices be lodged in the same person, and operate upon the same property. (Matter of Dority v. Dority, 40 App. Div. 236 .) So far as the petition goes, it avers a contract showing liability of the executors personally, and it is not pretended that the receiver represents any personal liability of the executors.

It may further be observed that great difficulty will attend upon an attempt,to find any cause of action stated in this petition against any pérson, either for a personal liability or in a representative capacity. If everything be taken as true, the executors seem to have done no more than they had a right to do without incurring liability of any character to the petitioner. But aside from this, enough appears to show that this order was improvidently granted. It should, therefore, be revei’sed, with ten dollars costs and disbursements, and the motion denied, with ten dollars .costs.

Yah Brunt, P. J'., Rumsey, Patterson and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Cases cited

Keeney v. Home Insurance 71 N. Y. 396 N.Y. 1877-12-11 p. 506
Ferrin v. Myrick 41 N. Y. 315 N.Y. 1869-12-21 p. 507