a. If the sheriff employs agents to assist him, he must himself remunerate them; but the cost of employing attorney and counsel is a necessary disbursement (Mayhew v. Duncan, 31 Barb. 87; and see Mayhew v. Wilson, 10 Abb. 289).

b. A sheriff must, in his bill of charges, specify the items of disbursements, under oath of himself or his deputy (Mayhew v. Wilson, 10 Abb. 289).

c. Where an arrangement was made by which the defendant agreed to pay certain drafts, and this was done,-held the sheriff was entitled to poundage upon the amount paid (Pritchard v. B'k of California, 51 Barb. 184).

CHAPTER V.

Provisional Remedies.

§ 244. (Am'd 1851, 1852, 1857, 1858, 1862, 1867.) Powers of court as to receivers, deposit of money, &c., in court, and other provisional remedies. Judgment for sum admitted due.

A receiver may be appointed :

1. Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action, and which is in the possession of an adverse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be had without application to the court.

2. After judgment, to carry the judgment into effect.

3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment.

4. In the cases provided in this Code and by special statutes, when a corporation has been dissolved, or is insolvent or in imminent danger of insolvency, or has forfeited its corporate rights; and in like cases, of the property within this State of foreign corporations. Receivers of the property within this State, of foreign or other corporations, shall be allowed such commissions as may be fixed by the court appointing them, not exceeding five per cent. on the amount received and disbursed by them.

5. In such other cases as are now provided by law, or may be

in accordance with the existing practice, except as otherwise provided in this act.

When it is admitted by the pleading or examination of a party that he has in his possession, or under his control, any money or other thing capable of delivery, which being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court.

Whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, may make an order requiring the sheriff to take the money or property, and deposit, deliver, or convey it in conformity with the direction of the court.

When the answer of the defendant, expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.

Receiver.

a. Appointment.-A receiver cannot be appointed until a suit is commenced (Anon. 1 Atk. 419), except in cases of idiots and lunatics (Ex parte Whitefield, 2 Atk. 315), or where defendant designedly keeps out of the way to avoid service of the process (Quinn v. Gunn, 1 Hogan, 75; Sandford v. Sinclair, 3 Edw. Ch. R. 393). He cannot be appointed without notice to the party interested, except under peculiar circumstances (People v. Norton, 1 Paige, 17; Verplank v. Mercantile Ins. Co. 2 id. 438; Sandford v. Sinclair, 8 id. 373; Gibson v. Martin, 8 id. 481; Field v. Ripley, 20 How. 26; Kemp v. Harding, 4 How. 178; Dorr v. Noxon, 5 id. 29; and see note to section 298); nor before answer, unless in special cases (West v. Swan, 3 Edw. Ch. R. 420; and see Vann v. Barrett, 2 Bro. C. C. 158; Bloodgood v. Clark, 4 Paige, 577; Osborn v. Heyer, 2 Paige, 343). An order to show cause why a receiver should not be appointed, served before the action is commenced, is irregular (Kattenstroth v. The Astor Bank, 2 Duer, 632). After judgment for default of answer, a receiver may be moved for without notice (Austin v. Figueira, 7 Paige, 56; Nesmith v. Halsted, 11 id. 647). Upon a motion for a receiver the merits are not inquired into (2 Barb. 532; 4 How. 166). Such motion relates only to the preservation of the property in controversy (4 Wend. 173; see 2 Barb. 533).

b. The pendency of a motion for leave to amend or to dissolve an injunction is no objection to a motion to appoint a receiver (Barnard v. Darling, 1 Barb. Ch. R. 76). A receiver is appointed only for the benefit of the parties, and not of strangers to the action (Howard v. Ripley, 10 Paige, 43). A party applying for a receiver, pending the litigation, must show a probable interest in the property, and that it is in danger of being lost (Goodyear v. Belts, 7 How. 187; Patten v. Access. Transit Co. 4 Abb. 235; Hamilton v. Access. Trans. Co. 3 Abb. 255; McCarthy v. Peake, 9 Abb. 164).

a. A receiver would not be appointed in a creditor's suit if the remedy at law had not been exhausted (Starr v. Rathbone, 1 Barb. 70).

b. The selection and appointment of a receiver and taking of security from him is a proper matter for a reference (Wetter v. Schlieper, 7 Abb. 92; Jackson v. De Forrest, 14 How. 82). Where it is referred to a referee to report a proper person to be appointed a receiver, an order of appointment by the court is necessary; but where the reference is to appoint a receiver and take the requisite security, the appointment by the referee needs no confirmation by the court (Re Eagle Iron Works, 8 Paige, 385); the appointment may be reviewed (id.)

c. The regularity of the appointment of a receiver cannot be questioned by any third party (Tyler v. Willis, 33 Barb. 327; and see Battershall v. Davis, 31 Barb. 323; Angel v. Salisbury, 19 How. 48).

d. Receiver appointed, in all cases of fraudulent trusts (6 N. Y. 252); where fraud is shown and the fund is in danger (Podmore v. Gunning, 7 Simons, 485; 1 Barb. Ch. R. 664; 1 Hopk. 429; 3 Johns. Ch. 48; see Reubens v. Joel, 13 N. Y. 488); to prevent the removal of the subject of the action out of the jurisdiction of the court (Gibbins v. Mainwaring, 9 Simons, 77; Tanfield v. Irvine, 2 Russ. 149; see 5 Law. Jour. Rep. Ch. 79); where a trustee is charged with violating his trust (Boyd v. Murray, 3 Johns. Ch. 48; see, however, Orphan Asylum Soc. v. Mc Cartee, Hopk. 429; Jenkins v. Jenkins, 1 Paige, 243); to preserve property of a corporation (Lawrence v. Greenwich Fire Ins. Co. 1 Paige, 587); in a proceeding to foreclose a mechanics' lien (Webb v. Van Zandt, 16 Abb. 314, note); of an estate assigned for benefit of creditors, the assignee being insolvent (Connah v. Sedgwick, 1 Barb. 210); pending an appeal (McMahon v. Allen, 14 Abb. 220).

e. Receiver not appointed, unless there is strong probability the court will decide in favor of the applicant and the fund is in danger (3 Abb. 255); in an action to stay waste (Robinson v. Preswick, 3 Edw. Ch. R. 246); on the application of one defendant against another before trial (Trumbull v. Ogden, Halst. Dig. 178); over real property, unless in extraordinary cases (Willis v. Corlies, 2 Edw. Ch. R. 281; Congden v. Lee, 3 id. 304; Parker v. Moore, id. 234; Cairns v. Chabert, id. 312; Ireland v. Nichols, 7 Rob. 476; Huerstel v. Lorillard, id. 251; 38 How. 43; Rogers v. Marshuli, 6 Abb. N. S. 457; see Receiver in Mortgage cases, and see Ejectment in note to § 455, post); in quo warranto to dissolve a corporation (The People v. Wash. Ice Co. 18 Abb. 382).

f. Who may be receiver.-An officer of an insolvent bank is not to be appointed its receiver (Att. Gen. v. Bank of Columbia, 1 Paige, 511; 3 Wend. 588). But on the voluntary dissolution of a bank, an officer or stockholder may be appointed receiver (Re Eagle Iron Works, 8 Paige, 385; 3 Edw. Ch. R. 385; Bowery Bank case, 5 Abb. 417; 2 R. S. 417). A party to the action may be appointed receiver (Fenn v. Bolles, 7 Abb. 203; Smith v. N. Y. Stage Co. 28 How. 208).

g. Where the same property is involved in two suits, it is the practice to appoint the same person receiver in both suits (Howell v. Ripley 10 Paige, 43; Osborn v. Heyer, 2 id. 342; Cagger v. Howard, 1 Barb. Ch. R. 368; see 4 E. D. Smith, 191).

h. Receiver is an officer of the court.-A receiver is an officer of the court which appoints him (Lottimer v. Lord, 4 E. D. Smith, 183); and entitled to the instructions of the court as to his duty (Re Van Allen, 37 Barb. 225; Curtis v. Leavitt, 1 Abb. 274). And the court will give such directions to a receiver, on the application of one not a party to the suit, as may be necessary to protect his rights (Vincent v. Parker, 7 Paige, 65; see 10 id. 46; 2 Duer, 685).

¿. When title vests in receiver.-When an order of reference is made for the appointment of a receiver, and a receiver is subsequently appointed, his title in certain cases vests by relation from the date of the order of reference (Rutter v. Tallis, 5 Sand. 612; Deming v. N. Y. Marble Co. 12

Abb. 66; Clark v. Brockway, 3 Keyes, 15). On the order for the receiver being consummated by his giving security, the personal estate and equitable interest of the party of whom he is receiver, vests in him without any assignment, as of the date of the order of his appointment (Wilson v. Allen, 6 Barb. 542; Wilson v. Wilson, 1 Barb. Ch. R. 592; Porter v. Williams, 9 N. Y. 142; 12 How. 107; Lottimer v. Lord, 4 E. D. Smith, 183; West v. Frazer, 5 Sand. 654; Albany City Bank v. Schumacher, 1 Clark, 278, 300: see & 298 post). Where intermediate the appointment of a receiver and his filing security, the property of which he was appointed receiver was levied on by the sheriff, the court, on motion, after the receiver had filed security, ordered a return of the property to the receiver (Steel v. Sturges, 5 Abb. 442; Rutter v. Tallis, 5 Sand. 612; see Rich v. Loutrel, 9 Abb. 356; 18 How. 121; Re N. Amer. Gutta Percha Co. 17 How. 549).

a. A receiver does not by force of his appointment as receiver become possessed of property in a foreign State (Field v. Ripley, 20 How. 26); nor of real property (Chautauque Co. B'k v. Risley, 19 N. Y. 374).

b. Delivery of property to receiver.-Where an order is made for the delivery of property to a receiver, the demand of delivery must be made by the receiver personally, a demand by the plaintiff in the action, his attorney or the referee appointed to see the delivery made will not warrant an attachment for disobeying the order to deliver (Panton v. Zebley, 19 How. 394).

e. Taking property from receiver.-Where a receiver is in possession of property which is claimed by a third person, the proper course is to apply by petition to the court which appointed such receiver for an order on him to deliver such property to the claimant, an attempt to obtain possession by suit against the receiver is a contempt (Riggs v. Whitney, 15 Abb. 390; see Noe v. Gibson, 7 Paige, 513; Albany City Bank v. Schermerhorn, 9 id. 372; 10 id. 263; Parker v. Browning, 8 id. 388; Chautauque Co. Bank v. Risley, 19 N. Y. 370).

d. Receiver represents creditors.—The receiver represents the creditors and the other persons interested (Porter v. Williams, 9 N. Y. 142; Wilson v. Allen, 6 Barb. 544; Gillett v. Moody, 3 N. Y. 479; Talmadge v. Pell, 7 N. Y. 328; Curtis v. Leavitt, 15 N. Y. 12; Brower v. Hill, 1 Sand. 629).

e. Compensation to receiver.-A receiver is entitled to commissions at the rates prescribed by the revised statutes; and he is also entitled to be repaid actual disbursements prudently made or incurred in the care of the trust property (Howes v. Davis, 4 Abb. 71). If he acts as counsel in the business of the receivership, he is not entitled to special remuneration beyond taxable fees as counsel (Re Bank of Niagara, 6 Paige, 213; Bennett v. Chapin, 3 Sand. 673; Re De Peyster, 4 Sand. Ch. R. 511; Gardner v. Tyler, 4 Abb. N. S. 463).

f. Receiver chargeable with interest when he mixes the trust fund with his own, or with other moneys held in trust, or uses or loans the money (Utica Ins. Co. v. Lynch, 11 Paige, 520).

g. Receiver's accounts.-A receiver is to account to the court only (Musgrove v. Nash, 3 Edw. Ch. R. 172). A report upon a receiver's accounts need not be confirmed; and cannot be excepted to (Brown v. Brown, 2 Edw. Ch. R. 621).

h. Order for receiver to discharge liens.—(Hubbard v. Guild, 2 Duer, 685; see Re Ingraham, 2 Barb. Ch. R. 35).

i. When receiver may sue or be sued.-A receiver could not bring ejectment without leave of the court (1 Ves. jun. 165; 3 Bro. C. C. 88; 16 Wend. 410). Nor could such an action be brought against him without leave of the court (9 Ves. jun. 335). Nor could he make any payment (1 2. 85; 7 Rob. 79). He cannot sue in a foreign jurisdiction for the property of the debtor of whose estate he is the receiver (Booth v. Clark, 17 How. U. S. Rep.

a. Commencing an action against a receiver as such, without leave of the court first obtained, is a contempt (Taylor v. Baldwin, 14 Abb. 166; De Groot v. Jay, 30 Barb. 483; 9 Abb. 356; 18 How. 121; and see Bailey v. Devereux, 1 Vernon Ch. Cas. 269), and proceedings in the action will be stayed (id.) But leave to sue a receiver is usually granted of course, and, if necessary, can be granted at any stage of the action; and the irregularity in suing a receiver without leave of the court is waived by an appearance in the action without objection (Hubbell v. Dana, 9 How. 424; see 8 Paige, 389).

b. A receiver should apply for an order for leave to sue for a debt (Merritt v. Lyon, 16 Wend. 410; Smith v. Woodruff, 6 Abb. 65). Having obtained leave, he is bound to sue (Winfield v. Bacon, 24 Barb. 154). And if he does not obtain leave, and fails in the suit, he will be personally liable for costs (Phelps v. Cole, 3 Code Rep. 157; Smith v. Woodruff, 6 Abb. 65; see, however, Devendorf v. Dickinson, 21 How. 275).

c. A receiver may maintain an action to set aside a fraudulent assignment made by a party of whose estate he is receiver (Porter v. Williams, 9 N. Y. 142); and he may interplead (Winfield v. Bacon, 24 Barb. 155).

d. An action against a receiver should not be restrained on the ground that a former judgment has disposed of the matters involved in the action; but the receiver should be left to set that up as a defense (Jay's case, 6 Abb. 293); nor should an injunction issue to restrain the prosecution of an action by a receiver, commenced by leave of the court; the proper mode of restraining him is by application to the court appointing him for instructions ( Winfield v. Bacon, 24 Barb. 154).

e. A receiver appointed in another State may sue in his character as receiver in this State (Runk v. St. John, 29 Barb. 585; and see Hoyt v. Thompson, 5 N. Y. 320).

f. What attorney the receiver is to employ.-A receiver should not employ, to bring suit for him as such receiver, adverse to any party to the action a person who has been employed for either of the parties to the action, in which the receiver was appointed (Warren v. Sprague, 4 Edw. Ch. R. 416; Re Ainsley, 1 id. 576; Ray v. Macomb, 2 id. 165; Panton v. Zebley, 19 How. 394). If he does, the proceedings may be set aside for irregularity; but the irregularity is so far waived by appearance without objection that on a motion afterwards made to set aside the proceedings, the courts will not do more than stay the proceedings until another attorney is substituted (ib.) The rule is for the benefit of the parties, and a stranger sued by the receiver cannot raise the objection (Warren v. Sprague, 11 Paige, 200; Bennett v. Chapin, 3 Sand. 675; Ryckman v. Parkins, 5 Paige, 543).

g. Changing receiver.-It is by no means a matter of course to change a receiver upon his own application. He must show some reasonable cause why he should be relieved (6 Mad. Ch. R. 266; Edw. on Rec. 547; Beers v. The Chelsea Bank, 4 Edw. Ch. R. 278). Relationship to one of the parties is not alone a ground for his removal (Wetter v. Schleiper, 7 Abb. 92; 6 Abb. 123; see 1 Bland, 427).

h. The employment by a receiver of the judgment debtor to collect a portion of the estate, is not in itself ground for removing the receiver (Ross v. Bridge, 15 Abb. 150). On motion to substitute one person for another as receiver, the regularity of the appointment of a receiver is not to be considered (Fassett v. Tallmadge, 18 Abb. 12). An order revoking the appointment of a receiver and appointing another, is not appealable (Siney v. N. Y. Consol. Stage Co. 18 Abb. 435; 28 How. 481).

i. Discharge of receiver.-The discontinuance of the action is not a discharge of the receiver, but on its discontinuance he may apply for a discharge (Whiteside v. Pendergast, 2 Barb. Ch. R. 471).

j. Costs against receiver.-See note to § 317.

k. Receiver in mortgage cases.-Receivers in mortgage cases are allowed with great caution (Shotwell v. Smith, 3 Ed. Ch. R. 688; see Jenkins v. Hinman, 5 Paige, 309; Frelingheysen v. Colden, 4 Paige, 204; Sea Ins. Co. v.