Majority
p. 396Mary A. Peckham et al., Resp’ts, v. The Dutchess County Railroad Company, Def’t. James K. O. Sherwood, Receiver, etc., App’lt. (Supreme Court, General Term, Second Depa/rtment, Filed October 26, 1894.)
Headnote
Railroads—Farm Crossings—Receivers.A judgment requiring a railroad company to construct a farm crossing will be enforced against a subsequently appointed receiver of the lessee of such company. .
Appeal from an order directing the receiver to comply with the requirements of the judgment in the above entitled action.
James Armstrong, (Milton A. Fowler, of counsel), for app’lt; Herrick & Losey, for resp’ts.
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 neces
p. 397
sary 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 theDutchess & 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.