Thompson v. Sherrard — 35 Barb. 593

Majority

p. 593

Thompson and others vs. Sherrard and others.

Headnote

In an action to recover the possession of real estate, it is irregular and improper to appoint a receiver of the rents and profits of the property; such appointment not being consistent with the nature, of the action and the relief sought, or with the provisions of the revised statutes, declaring and restricting the force and effect of judgments in actions of that nature, even as between the parties.

APPEAL by the defendants from an order made at a special term, appointing a receiver.

A. R. Lawrence, Jr. for the appellants.

George Stevens, for the respondents.

Before the code, this would have been called an action of ejectment. It is an action to recover the possession of certain real estate in the city of New York, and damages for the wrongful withholding thereof. On the complaint and affidavits, before answer, and on the motion of the plaintiffs, an order was made, at special term, appointing a receiver of the rents and profits of the property described in the complaint. The case comes before us by appeal from this order.

The question is whether the order appointing a receiver was regular and proper. I think it was not, and that the order should be reversed with costs.

It appears from the affidavits, that the real estate claimed consists of a lot of ground with a tenement house thereon. That at the time of the commencement of the action, the defendants Robert Sherrard and wife were in the occupation of certain rooms, or a certain part of the house, and that the other defendants, Lenerthan, two Coulters, Transquist, Greenwood and Norwood, were in the actual occupation of the other rooms or parts of the house as tenants, paying certain specific cash rents to Robert Sherrard. It is these certain

p. 594

and specific and cash, rents which, by the order, I suppose it was intended the receiver should be made the receiver of. It is doubtful whether Sherrard and his wife could properly be joined as defendants with the tenants, the other defendants. (The People v. Mayor &c. of New York, 17 How. Pr. Rep. 56 , 65, and cases there cited.) As to the part of the premises actually occupied by Sherrard, he was the only proper defendant. Perhaps his wife might have been joined with him. As to the other parts of the premises actually occupied by the tenants paying rents to him, he could, at his election, by motion, be made a defendant, under the provisions of the revised statutes. (2 R. S. 341, 342, § 17.) But it would appear that even under the code he could not properly be made a defendant at the election of the plaintiffs, by naming him in and serving him with the complaint, as to the parts of the premises actually occupied by his tenants. (The People v. The Mayor &c. above cited, and the cases there cited.)

But it is not necessary, in disposing of this appeal, to decide whether Sherrard could properly be made a defendant with his tenants, as to the parts of the premises not occupied by him, but actually occupied by his tenants; or whether a joint action could be brought against him and them for the several parts actually occupied by him and them. It is plain, independent of these questions, that the appointment of a receiver in the action was irregular and improper.

Such appointment was not consistent with the nature of the action, and the relief sought; or with the provisions of the revised statutes, (2 R. S. 309, §§ 36-38,) declaring and restricting the force and effect of judgments in such actions, even as between the parties. These provisions have not been repealed by the code. (Lang v. Ropke, 1 Duer, 701 . Chautauque Co. Bank v. White, survivor &c., recently decided by the court of appeals.)

If the plaintiffs recover a judgment in this action, the de

p. 595

fendant, or defendants, against whom the recovery shall be had, will be entitled of course by section 37 of the statute above referred to, at any time within three years thereafter, to have the judgment vacated, and to a new trial in the action. In the meantime, what is to become of the rents and profits of the premises in the bands of the receiver ? To whom do they belong, and what is the receiver to do with them? If paid over to the plaintiffs on their obtaining judgment, the plaintiffs may have to pay back such rents and profits, either to the receiver or the defendants on the termination of the second trial. I do not see why the defendants, on the judgment which the plaintiffs may obtain being vacated and a new trial ordered, would not have the same right to have a receiver appointed, on their motion, as the plaintiffs had on comm encing the action, on their motion. And thus the rents and profits might shift from receiver to receiver, or from party to party, until the second judgment in the action is obtained.

But even the second judgment is not conclusive, as between the parties, as to the title. By the same 37th section, the court may, within two years after the second judgment, grant another new trial.

Again; the appointment of a receiver in this action must have been made upon the theory that the plaintiffs recovered the possession of the premises. They would also be entitled to recover, as of course, as damages for the unlawful withholding of the possession, the precise rents, or amount of the rents, paid or payable by the tenants, to Sherrard. But this is all a mistake. The action for the possession of land, under the code, is brought, as ejectment before the code was brought, against the defendants as trespassers, and the claim against them for mesne profits was, and is still, a claim against them as trespassers for the wrongful withholding of the possession.

Can it be claimed that it is regular and proper to appoint

p. 596

a receiver to receive damages, to be recovered in an action of trespass?

[New York General Term,

September 16, 1861.

I again refer to my opinion in the case of The People v. The Mayor &c. of New York, on this point. (See opinion, 17 How. Pr. Rep. pp. 63, 64.)

Order reversed, with costs.

Clerke, Sutherland and Barnard, Justices,]