
    The Metropolitan Trust Company of the City of New York, appellant, v. The Tonawanda Valley and Cuba Railroad Company and others, respondents.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Railroad company — Mortgage — Deeds of trust—Receiver in foreclosure PROCEEDINGS—NOT AUTHORIZED TO ISSUE CERTIFICATES TO PAY CLAIMS OF EMPLOYEES.
    A receiver appointed in an action to foreclose a mortgage given by a railroad corporation is not authorized to issue certificates to pay the claims, of employees of the railroad for labor performed before bis appointment.
    
      Herbert B. Turner, for Farmers’ Loan and Trust Company, appellant.
    
      Thomas G. Hillhouse, for plaintiff, appellant.
    
      Frank H. Platt, for receiver, respondent.
    
      Edward C. Randall, for claimant, respondent.
    
      
       See note at end of case.
    
   Danforth, J.

The appeal in this case is by the plaintiff and by The Farmers’ Loan and Trust Company, one of the defendants, from so much of an order of the supreme court as authorizes Spencer, as receiver of the property, real and personal, easement, rolling stock and equipment, leases, franchises and all other rights and property whatsoever of the defendant, The Tonawanda Valley and Cuba Railroad Company, covered by the mortgage or deed of trust dated September 1, 1881, referred to in the complaint in this action, to pay or issue his certificate of indebtedness for the payment of the following items and amounts, namely, $8,400.21 to the employees and servants of the railroad aforesaid, for labor and services in operating prior to said receiver’s appointment, and subsequently to September 1, 1884; and also $3,000 for deficiencies for supplies, and makes the certificates when issued a hen and charge on all the property of the defendant’s railroad company prior to the hen of the several mortgages or deeds of trust upon the said railroad, or upon any part thereof.

Notwithstanding the argument of the respondents’ counsel, we are unable to discover any principle upon which the claims of the employees for labor performed before the appointment of the receiver can be so extended as to diminish or impair or postpone the hen of the mortgage, for the enforcement of which the action was brought, or the hen of the mortgage set up by the Farmers’ Loan and Trust Company. Both are prior in point of time to the respondents’ claims,, and we are referred to no statute which displaces them.

The legislature has given the laborer a remedy in certain cases against the stockholders of a corporation, upon default of the corporation to meet its obhgations (Laws of 1850, chap. 140, § 10; Laws of 1854, chap. 282, § 16), but the decree in this case goes much further and requires their payment out of the property of other creditors. The argument in its support is that the value of the mortgage lien has béen enhanced by the labor of the workman. It is easy to see that under such a plea the lienor might be entirely defeated, and the foreclosure of his mortgage rendered inoperative and useless. Such a result, except upon his consent, the courts have' no power to sanction. It is going a great ways in that direction to permit, as, it is true, courts sometimes have permitted, a receiver of an insolvent railroad corporation to pay for materials and labor procured by him after his appointment, necessary to the running of the road it may be, but not to the winding up of the affairs of the corporation. The propriety of that practice we are not called upon to review, but notwithstanding the research of the respondents’ counsel, no case has been cited where an unsecured creditor, however meritorious the consideration of his claim, has been given priority over a hen contracted for and in force when his debt was created. When, as in this case, the plaintiff procures the appointment of a receiver, with power to control and operate the mortgaged railroad, he cannot well object to the' depreciation of his security by expenses incurred for these purposes, but he may properly seek to have excluded any previous ones. Here the claimants are mere general creditors, with no special equities in their favor against prior creditors, nor have they an equitable hen upon any fund in court, ff there were any who occupied a different position, their rights are fully protected as against the plaintiff by the order appointing the receiver, who was directed to pay all the debts and balances due to the laborers theretofore employed by the defendant railroad company for labor or services done or due for supplies furnished in the operation of the railroad, and for which they have a lien. A different relation is established by the act of 1885 (chap. 376)/ which requires a receiver of such a corporation to pay the wages of its employes and laborers in preference to other debts or claims, but that statute was not in force when the proceedings now under review were had, and, therefore, even if applicable to a receiver in a foreclosure case, cannot be invoked to sustain the order appealed from. Here the appellants have the prior lien by mortgage, and, upon general principles, from which the circumstances of this case require no departure, are entitled to a preference. Vatable v. New York, Lake Erie and Western R. R. Co. (96 N. Y., 49).

As to the other item, viz., deficiencies for supplies: If the appeal stood alone upon the notice of the plaintiff, it might be that under the order appointing the receiver, it should be allowed to stand. That order directed him in effect to maintain and keep in repair and operate the railroad, and "to pay the necessary expense of so doing. It was made on plaintiff’s request and plaintiff must abide by it. But with the other appellant it is different. The Farmers’ Loan and Trust Company was not a party to the application for a receiver, and is not found to have acquiesced in it. The finding of the referee is that “the receiver, as such, while operating the road has incurred obligations to the amount of $1,712 for supplies delivered for the use and operating the road, consisting of coal, oil, hardware, repairs done by the Erie Railroad Company at their shops, freight and ticket balances, etc., a statement of which appeared in exhibit “J” attached to the petition in this proceeding, and is under the head of “Accounts payable April 1, 1885.” This the receiver calls the deficiency account, and it does appear that he has no funds out of which to realize the money to pay this account, or any portion of the same.

We find no exhibit “J” in the case, but under “accounts payable April 1, 1885,” a statement of names of creditors and amounts, but no statement of the consideration or cause of indebtedness, and nothing therein or in the finding of the referee to show that the debts or obligations were necessarily incurred.

No brief has been submitted for the receiver or other party in support of this last item, and we discover no ground on which it can stand.

We think, therefore, so far as appealed from, the order of the general and special term should be reversed, and the petition of the receiver in respect to the items embraced in the appeal denied, with costs to the appellants, to be paid by the receiver as such, ‘and not individually.

All concur, except Milller, J., absent.

Note.—This case is published out oí its order, by special request.—[Ed.  