#### Thomas W. Dow, Respondent, *v.*James J. Nealis, as Receiver, Appellant.

(Supreme Court, Appellate Term,

April, 1905.)

Foreclosure — Authority of receiver pendente lite — Written lease — Oral agreement for cold storage.

Where a written lease contains no provision as to furnishing cold storage to a tenant, a receiver, appointed *pendente lite*in an action to foreclose a mortgage upon the leased premises, is not liable in damages for failure to supply the tenant with cold storage facilities in his business of a saloon keeper unless expressly authorized by the order of his appointment though the tenant’s claim that such provision was made by an independent oral agreement between him and the mortgagor was not disputed.

Appeal from a judgment of the Municipal Court of the city of Mew York, tenth district, borough of Manhattan.

'Peter Eagan, for appellant.

David Milliken, for respondent.

Leventritt, J.

The plaintiff recovered a judgment against the defendant for damages sustained by the failure to supply him with cold storage in his business as a saloon-keeper.

■ The defendant was appointed receiver in an action brought to foreclose a 'mortgage;' the plaintiff was the tenant of a saloon on the premises, under a written lease with the landlord. This léase was very complete and precise in its terms, and, while providing for many things essential to the conduct of the plaintiff’s business, contained no provision as to furnishing either cold storage or the facilities therefor. It was claimed by the plaintiff, and not disputed, that such provision was made by independent oral agreement with the landlord. It is difficult to see, under these circumstances, where the liability of the receiver attached for failure to provide the cold storage. Mot only was there no *154obligation on him to do so, but on the state of the record no inference can be indulged in that he even had the power to do so. The order appointing the receiver was not put' in evidence. It does not appear on what ground he was appointed, probably, however, on the ground of the inadequate security of the mortgage debt, or because the rents were pledged for its payment. Without knowing to what extent the order conferred powers on him we may not assume that he was more than the usual receiver appointed *pendente lite*to preserve the property to which the receivership extended while the case remained undecided. Keeney v. Home Ins. Co., 71 N. Y. 396; Stokes v. Hoffman House, 46 App. Div. 120; affd., 167 N. Y. 554. He had no1 title, merely the right to possession as an officer of the court, and no authority beyond the limits of the order of his appointment. Decker v. Gardner, 124 N. Y. 338.

In Wyckoff v. Scofield, 103 N. Y. 630, it was held! that a receiver of the rents and profits in a foreclosure suit had no power without the order of the court to lessen the funda in his hands by expenditures for repairs, even though such repairs were necessary to preserve the property. Dnder these precedents it is clear that the receiver had n'o power to furnish cold storage, unless the court expressly authorized it. Whatever may be the rights of the plaintiff against his landlord, or against a fund which may ultimately be declared the property of the landlord, or whatever may have been his right to apply to the court to ask for a direction to its receiver to furnish the cold storage, it seems clear that the court’s officer, merely holding the property subject to its direction on the issue of the litigation, cannot be held liable in damages for the omission of an act which he had no power to perform. The judgment must be reversed.

Scott and Leventbitt, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.