#### Frank W. Colwell, Rec’r, Resp’t, *v.*The Garfield National Bank, App’lt.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Receiver—Pendente luce.

A court of original jurisdiction has no power before judgment, in an action in which a receiver *pendente lite*has been appointed on the application of the plaintiffs, to make an order continuing the receivership after judgment shall have been rendered, during the pendency of any appeal which may thereafter be taken therefrom. '

2. Same.

A receiver *pendente lite,*after judgment against the party at whose instance he was appointed, cannot commence an action in behalf of the estate which he represents.

*386Appeal from a judgment of the general term, New York common pleas, affirming judgment of special term of that court overruling demurrer to complaint.

*Louis 0. Van*Doren, for app’lt; *Wm. B. JE*llison, for resp’t.

1

 Reversing 22 N. Y. State Rep., 21; see 25 id., 1040.

Andbews, J.

The demurrer raises the question as to the power of the court of original jurisdiction, before judgment in an action in which a receiver *pendente lite*has been appointed on the application of the plaintiffs, to make an order continuing the receivership, after judgment shall have been rendered, during the pendency of any appeal which may be taken therefrom to the supreme court or to this court.

The complaint shows that an action was commenced by James and George Stewart, claiming to be creditors of the firm of Hepworth & Co., of which one Colwell was a member, against Hepworth, the surviving partner, and the executors of Colwell, to sequestrate the estate of Colwell, and charge it with a debt contracted after the death of Colwell, by Hepworth in the name of Hepworth & Co., in favor of the Stewarts, on the ground that by the partnership agreement the partnership business was to be continued after the death of either partner, for the joint benefit of the surviving partner and the estate of the deceased partner, and that the estate of. Colwell was liable for the debt of the Stewarts.1

The case was decided in this court adversely to the Stewarts, in a decision in 115 N. Y., 328; 26 N. Y. State Rep., 117, which affirmed the judgment of the special and general terms. The complaint in the present action further shows that after the trial of the action of the Stewarts, but before any decision was made or rendered, a receiver *pendente lite*"vyas appointed therein by the judge before whom the trial was pending, on the application of the plaintiffs therein, and with the assent of two of the then executors of Colwell, the third executor opposing the appointment. The order purported to vest in the receiver all the property and estate, real and personal, of Colwell, in the possession of, or under the control of his executors and trustees under his will, with power to collect all debts and demands due or to become due to the estate of Colwell, to retain and pay counsel, and generally investing the receiver with full power to take possession of and manage the estate, subject to the order of the court. This original order, dated February 4, 1888, was followed by another order dated February 25, 1888, made by the same judge, but *ex parte,*so far as appears, continuing the receivership under the order of February 4, 1888, “ with all the powers and duties ” thereby imposed and conferred, for thirty days after the entry of judgment in the action, and if an appeal shall be taken, until thirty days after the decision of the appeal by the general term, and in like manner until after the decision of any appeal which might be taken to this court, and thereafter “ until an entry of an order of this (supreme) court, discharging said receiver.”

The order of February 25, 1888, was also made before judgment It recites the prior order, and also that “ this action having-been tried and decision rendered, but no judgment entered, and *387the parties proposing to appeal from the judgment when entered,” etc. The decision and the judgment subsequently entered thereon was adverse to the plaintiffs in the action, by whom the orders appointing and continuing the receiver were procured. This action was commenced by the receiver after judgment against the Stewarts in the action in which he was appointed had been affirmed at the general term, to recover a debt owing by the defendant to the estate of Colwell

We are of opinion that the court had no power, prior to judgment, to make the order of February 25, 1888, continuing the receivership pending appeals from a judgment which might thereafter be rendered in the action. The original action was, at least, very unusual. The plaintiff therein sought to take the settlement of the estate of Colwell out of the hands of his executors, and oust the surrogate of the jurisdiction • confided to him in the settlement and distribution of the decedent’s estate. ¡No grounds are set forth in the complaint in the present action for the exercise in the particular case of this extraordinary jurisdiction. But assuming that a case could have been made, and that the original order of February 4, 1888, was not void for want of jurisdiction, we are nevertheless of the opinion that the court had no power, by another order made before judgment, to continue the receivership after judgment and pending appeals therefrom. The power of the court to appoint receivers is prescribed by § 713 of the Code of Civil Procedure. The first subdivision of that section provides for the only case where a receiver can be appointed before judgment, and that is the usual receiver *pendente*lite, whose active functions terminate with a judgment adverse to the party who procures his appointment, although his character as receiver may continue for the purposes of rendering his account, until he is by order discharged from his trust *Whiteside*v. Prendergast, 2 Barb. Ch., 471. But we find no authority to support the proposition that a receiver *pendente*lite, after judgment against the party at whose instance he was appointed, may commence an action in behalf of the estate which he represents.

The second subdivision of § 713 authorizes the appointment of a receiver by or after final judgment, to carry the judgment into effect. This has no application to the present casa The third subdivision authorizes the appointment of a receiver *“*after judgment, to preserve the property during the pendency of an appeal” The order of February 25, 1888, continuing the receivership, was made before, and not after final judgment, and the order was not justified by this subdivision.

We need not determine in this case whether the jurisdiction of the supreme court to appoint receivers can be exercised only in the cases and under the circumstances prescribed by § 713, or by other statutes. But in cases where the provisions of § 713 are applicable, and the statutory provisions furnish an adequate remedy, the power of the court is we think limited by that section, and it must proceed in the manner pointed out thereby, or else its orders will be void. It is within the power of the court, after judgment, to appoint a receiver pending an appeal therefrom, *388although the judgment denies relief to the plaintiff. But the-Code evidently contemplates that this application is to be made upon the whole case, including the adverse judgment. It does not permit an order to be made in anticipation of the judgment, continuing the receivership after judgment shall have been rendered. The protection of the rights of parties does not require any departure from the practice prescribed by § 718. The power of the court to stay proceedings pending an application for the appointment of a receiver under the third subdivision, preserves any substantial rights of the defeated party. The order of February 25th has no added force because two of the executors of Colwell may have united in the application for it, or for the reason that the receiver is one of the executors. It was opposed by the third executor, and his opposition prevents the order being-regarded as made by the consent of all the parties in interest, assuming that such consent would have conferred jurisdiction.

We think the order of February 25th was made without jurisdiction, and did not operate to vest in the plaintiff a right of action to recover the claim sued upon.

The judgments of the special and general terms should, therefore, be reversed, and judgment directed for the defendants on the demurrer.

All concur.