
    William Webber and Others, as Executors, etc., of Richard Webber, Deceased, Respondents, v. James Ahearn and Others, Defendants. Catherine Reisert Ahearn, Appellant.
    Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of December, 1912, appointing a receiver of rents and profits in an action to foreclose a mortgage.
   Scott, J.

The appeal is taken by one Catherine R. Ahearn, not a party to the action, who claims to be in possession under a contract of sale, and to have been so since a period prior to the filing of the Us pendens. That she is so in possession is not denied, and it is manifest that the action cannot, under the circumstances, proceed to judgment until she is brought in. Nor should a receiver have been appointed until she was made a party. The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for the appointment of a receiver denied, with leave to renew after the appellant has been brought in as a party. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with leave to renew as indicated in opinion.  