Peckham v. Dutchess County Railroad — 31 N.Y.S. 105

Majority

p. 105

(81 Hun, 399.)

PECKHAM v. DUTCHESS COUNTY R. CO.

(Supreme Court, General Term, Second Department.

October 26, 1894.)

Headnote

Receivers—Liabilities—Judgment against Predecessors in Title.

After a judgment had been recovered against defendant railroad company requiring it to construct a crossing on plaintiff’s farm, defendant leased Its road to another company, and after such lease a receiver of the lessee company was appointed. Held, that an order was properly granted requiring the receiver to construct the crossing.

Appeal from special term, Dutchess county.

Action by Mary A. Peckham and others against the Dutchess county Railroad Company to compel defendant to construct a farm crossing. A judgment in favor of plaintiffs was rendered February 26,1892, requiring the crossing to be made. See 20 H. Y. Supp. 39; 35 H. E. 206. About August 1,1892, defendant leased its railroad and all its property to the Philadelphia, Reading & Hew England Railroad Company, and on August 19, 1893, James K. O. Sherwood was appointed receiver of the property and franchises of the last-named company, in an action of foreclosure by a trustee for its bondholders. A motion to require the receiver to construct a crossing ordered to be made by defendant was granted, and the receiver appeals.

Affirmed,

p. 106

Argued before DYKMAN and CULLEN, JJ.

James Armstrong (Milton A. Fowler, of counsel), for appellant

Herrick & Losey, for respondents.

We deem it unnecessary in this action to do more than to state our conclusions, which are these: The judgment in the action against the Dutchess County Railroad Company recited in the papers was in the nature of a judgment in rem. The only right of that company to maintain a railroad is to maintain it in compliance with the statutory provisions, which compel the company to furnish suitable farm crossings. The judgment in the case was that the particular work intended to be done was necessary to comply with the statute which gives such farm crossings. The judgment was recovered before the lease of the Reading Railroad Company, and bound the latter, or any other person or corporation who acquired an interest in the Dutchess County Railroad subsequently to the date of its recovery. The receiver, Sherwood, has simply acquired the rights of the Reading Railroad Company, and, as against the plaintiff, cannot claim any greater immunity from compliance with the judgment of the court than any other party or company that might succeed to its rights. It is true that the order is broad enough in its terms to compel the receiver to pay, out of any fund of the Reading Road, the expense of constructing the farm crossings, but the receiver must do one of two things: Either comply with the judgment of the court as to the manner in which the Dutchess Railroad shall be constructed, or abandon the property. In case of such abandonment, the plaintiff can then proceed against the Dutchess & Columbia Railroad Company, but the receiver can only hold that railroad subject to the same liabilities as any other tenant. If he has failed to comply with the terms of the lease, the Dutchess & Columbia Railroad Company can compel him, receiver though he is, to either pay the rent or quit, and he must do the same to this judgment. The order should be affirmed, with $10 costs and disbursements. All concur.