#### BERNARD SHERIDAN, Appellant, *v.*STEPHEN C. JACKSON and others, Respondent.

*Receives'*— right *of a person not a pa/rty to the action in which a receiver was appointed, to maintain action against him for money collected.*

Appeal by tbe plaintiff from a judgment dismissing bis complaint, and also from an order granting extra allowances and costs to four of tbe defendants in the action.

. Tbe plaintiff alleged in bis complaint that on tbe 19th day of November, 1856, be was entitled to tbe possession of certain lands and premises which are particularly described, and to tbe rents, issues and profits thereof, and that be has ever since been so entitled and still is. That, in January, 1870, an action was commenced in tbe Supreme Court, in which all tbe defendants (but not tbe plaintiff) in this action were parties, except tbe receiver Cameron, some as plaintiffs and tbe others as defendants, in which tbe rights and interests to and in tbe said lands and premises, and tbe rents and profits thereof as between those parties were litigated. That tbe defendant Cameron was appointed by tbe court a receiver of tbe *90rents, issues and profits of tbe premises in that action, and that as such receiver he had received certain rents and profits amounting to a large sum. That the plaintiff had demanded the money so received from the receiver, which he had refused to pay.

The complaint then asked that the receiver account to the plaintiff for all the moneys received by him in that action as such receiver, and that he be restrained from paying the same to any other person during the pendency of this action. No demand was made for the recovery of the premises or any part of them.

The case came on for trial at Special Term, and the plaintiff’s counsel admitted that no permission had been given by the court to commence this action; .that the plaintiff had been out of possession of the premises for several years last past, and that during that time the defendants had been in possession of the same, until 'the appointment of the receiver in that action. That the plaintiff was not a party to the action in which the receiver was appointed. The court thereupon dismissed the plaintiff’s complaint, and judgment was entered against him, on the ground that the facts which it alleged did not constitute a cause of action in favor of the plaintiff, and because, taken in connection with the facts which were admitted on the part of the plaintiff, it appeared that he ha'd no cause of action.

The General Term said: *“*The receiver holds the fund now in his hands, subject to the order of the court, and that order can only be made with reference to the rights and interests of the parties to the first action, after those rights are determined therein; at all events the plaintiff shows no right to have the fund divested from that direction. To say simply that he is entitled to this fund, in view of all the facts disclosed, is not sufficient. It appears that the defendants claim the rents, and that the receiver holds them subject to the determination of their claims, and yet the plaintiff wants a judgment against the receiver alone that shall give him the fund. He does not want his right to it as between him and the defendants determined. He does not want any relief as against the other defendants at all. He does not even ask any adjudication in respect to his right to the rents, but assumes that he is entitled to them, and that the receiver was bound to pay them over to him on demand precisely as if they were moneys had and received for the plaintiff. *We*think the court below was right in dismissing the plaintiff’s *91complaint, and that the judgment appealed from must be affirmed, with costs.

An additional allowance of $350 was granted to four of the defendants, and the plaintiff has appealed from that order. Whether the defendants should have costs or allowances, was entirely in the discretion of the court. It is quite true that such discretion can be controlled by the court in banc, if it was unreasonably or improperly exercised; but we do not think it was. The plaintiff had brought these parties into court on a very weak pretense of right, and then stated a case which showed he ought not to recover. TJnder these circumstances, we think it was very proper for the court, as far as possible, to indemnify these parties by costs and reasonable allowances.

The judgment and order appealed from must be affirmed, with costs.”

*Oul/oer & Siroud/y,*for the appellant. *Edma/rd M. Shepard,*for the respondent Jackson. *JoTm Andrews,*for respondents G. A. Andrews 'and others.

Opinion by

Pykman, J.

Barnard, P. J., concurred. Gilbert, J., not sitting.

Judgment and order affirmed, with costs.