
    SUPREME COURT.
    William H. Baker, as receiver, &c., respondent, agt. Johk C. Van Epps and others, appellants.
    
      Beceirer—Supplementary proceedings—Beceirer may employ an attorney of judgment creditor.
    
    A receiver in supplementary proceedings may employ on his behalf the attorney of the party for whose benefit the proceedings are instituted (Overruling Branch agt. Branch, 49 How., 196; and Gumming, Beceirer, agt. Bdgerton, 9 Bosw., 685).
    
      Fourth Department, General Term, October, 1880.
    
      Before Müllik, P. J., Rumsey and Tatcott, JJ.
    
    
      This is an appeal from an order made at Monroe special term denying a motion made by defendant John 0. Yan Epps to set aside the summons and dismiss the action as to him on the ground of irregularity, to wit, that the plaintiff’s attorney in this action is and was the attorney of the judgment creditor in the action, and proceedings supplementary to execution therein, by which the plaintiff was appointed receiver of the property, &c., of John 0. Yan Epps {See 58 How., 401).
    
      Fanning & Williams, for appellant.
    (1.) Plaintiff having been appointed receiver in supplementary proceedings, and such being proceedings in the actions, it was irregular for Mr. E., attorney for judgment creditor, to be attorney for receiver, plaintiff herein (Branch agt. Harrington, 49 How., 196; Cumming, Receiver, agt. Edgerton, 9 Bosw., 185; Ray agt. Macomb, 2 Edwds. Ch., 165; Ryckman agt. Parkins, 5 Paige's Ch., 543-545; Warren, Receiver, agt. Sprague, 4 Edwds. Ch. [146]; In re Ainsley, Receiver, 1 id., 576; Baker's Sup. to Riddle on Sup. Prodgs., pp. 56, 57).
    (2.) This appeal is brought to test above citations.
    The reason of the rule rests in public policy. The attorney of parties is bound in duty to his client to watch the proceedings of the receiver and see that he faithfully discharges his duty. To be attorney for receiver might cause inconsistent and conflicting duties.
    A receiver represents not only debtor but creditor also (9 Bosw., 685, supra ; Porter agt. Williams, 9 N. Y., 142-149).
    (3.) Appellant John 0. Yan Epps, judgment .debtor, not having appeared in this action or waived his rights in any way, had the right to take advantage of the irregularity.
    (4.) The same rule applies in case of receiver in supplementary proceedings as in that of other receivers (Section 298, old Code; 9 Bosw., 684, supra).
    
    (5.) The special term virtually concedes the correctness of foregoing by denying motion Simply on the ground that “ all defendants did not join in the application.” But this was erroneous because:
    Note.— The plaintiff was receiver under proceedings supplementary to execution, and no opinion was written. The rule that a receiver shall not employ the attorney of either party in the action in which he was appointed as his counsel was adopted when each party claimed the fund, and the selection by the receiver of counsel for either party to the action would tend to give such party an unfair advantage. In supplementary proceedings the fund belongs to the judgment creditor, so far as may be necessary to satisfy his judgment, so no controversy can arise as to the disposition of it after the fund is reached. The action is prosecuted by the receiver practically for the benefit of the judgment creditor, who is responsible for the costs of it, and under such circumstances there is no reason why he should not have the selection of the attorney by whom the proceedings are to be conducted (Supreme Oowrt Buie 85). For this reason the general term held that the receiver acted properly in employing the attorney of the judgment creditor to prosecute the action and refused to set aside the proceedings. [Rep.
    
      {a.) His codefendant was a stranger to suit and proceedings on which receiver was appointed, and could not take advantage of the irregularity (9 Bosw., 684, supra; Warren agt. Sprague, 11 Paige, 200).
    
      (b.) It does not appear from moving papers that the codefendant has ever been served with process, or is in a position to join in the motion.
    
      (c.) There are no counter-affidavits, hence the allegations of the moving papers are admitted.
    (6.) The order appealed from should be reversed, with costs, against plaintiff receiver, personally, as it was brought without order of the court.
    
      Angus McDonald, for respondent.
   By the Court.

The order appealed from affirmed, with ten dollars costs and disbursements. Reid, that in supplementary proceedings the receiver can employ the attorney of the party for whose benefit the proceedings are instituted.  