Wyckoff v. Scofield — 4 N.Y. St. Rep. 301

Majority

p. 301

Mary Emma Wyckoff v. Seth W. Scofield, et al. Matter of the petition of Maddock. William S. Maddock, App’lt, v. D. J. Noyes, receiver, Mary Emma Wyckoff, Pl’ff, and Smith and Scofield, Def’ts, Resp’ts.^[1]

(Court of Appeals,

Filed December 17, 1886.)

Headnote

1. Foreclosure—Receiver in—Power of as to fund.

A receiver appointed in foreclosure proceedings has no power to lessen the fund to which plaintiff has a right to resort.

2. Same—Not liable for work done under Laws 1882, chap. 410, § 473.

The New York Consolidation Act, Laws 1882, chap. 410, section 473,

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provides that whenever there shall be an excavation upon any lot of land in the city of Mew York, and there shall be any party or other wall on the 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 so to do after notice from the Are department, the depar.ment may take such steps as in its judgment may be necessary to make the same secure,” at the expense of t..e person or persons owning-said wall or building of which it may be a part; and any ] erson 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,” etc. Held, that though it might be the duty of the owners to protect the wall against the effect of the excavation, the statute was not broad enough to cast the duty on others, certainly not upon a receiver appointed in proceedings for the foreclosure of a mortgage upon the property-

Appeal from, an order of the general term of the superior court of the city of New York affirming an order of the special term. In January, 1884, defendant Scofield was the owner of premises situate in the city of New York, of which Wyckoff was mortgagee. One Noyes was appointed receiver of the rents and profits thereof during the pendency of this action to foreclose the mortgage. The petitioner herein was the owner of the adjoining premises on which there was an excavation, which rendered the wall of the mortgaged premises unsafe. The inspector of buildings notified the owner and the receiver to make the same secure, and upon their failure so to do, Haddock, by authority of the inspector, performed the necessary work and made application, to the special term for an order directing the receiver to pay from the rents and profits the sum so expended by him for the work. The special term denied, the application, and upon appeal the general term affirmed, its order.

Lemuel Skidmore, for app’lt; Samuel A. Noyes, for resp’t.

It does not appear upon what ground the receiver was appointed, but it may be assumed that the premises were 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 appliedto. The expenses were not incurred, nor the repairs made, with its permission, and whether, having been made, the court shall 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"413 of the act of 1882, chapter 410, known as the New York consolidation1 act. " It is-there

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provided that “whenever there shall be an excavation upon any lot of land in the city of New York, and there should be any 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 lot No. 367 to protect the wall against the effect of the excavation, 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.