
    The Farmers’ Loan & Trust Company, as Trustee, Plaintiff, v. The Staten Island Belt Line Railroad Company and Others, Respondents. Staten Island Electric Railroad Company, Purchaser, Appellant. Staten Island Midland Railroad Company, Respondent.
    
      Writ of assistance — the validity of a lease given by a receiver pendente lite should not be determined on a motion — effect of the purchaser at a judicial sale homing knowledge of the lease.
    
    Upon the hearing of a motion for a writ of assistance, it appeared that the plaintiff began an action of foreclosure against the defendant, the Staten Island Belt Line Railroad Company, and that while this action was pending, at the instance of the plaintiff, a receiver was appointed, pending the action. During .the pendency of the action, and on March 18, 1892, after hearing the plaintiff and against its opposition and that of other creditors of the mortgagor, the court authorized the receiver to lease a part of the line of the mortgagor to the Port Richmond and Prohibition Park Electric Railroad Company, of which lease the Staten Island Midland Railroad Company became the assignee.
    The latter company had expended large sums of money upon the faith of the lease, when under a judgment of foreclosure and sale, rendered in June, 1894, the Staten Island Electric Railroad Company became the purchaser of the property and franchises of the mortgagor, and, finding the Staten Island Midland Railroad Company in possession of a part of the road, applied for a writ of assistance to remove it from the mortgaged premises and to put the Staten Island Electric Railroad Company into possession. This was refused.
    
      Held, that the writ of assistance was properly refused;
    That the court would not express any opinion as to the propriety of the order of March 18, 1892, as the questions involved were too important to be determined upon a motion;
    That while the Staten Island Electric Railroad Company might question the power of the court to make the order and attack the title of the Staten Island Midland Railroad Company by means of an action, it could not attack the order on the ground that it was not a proper exercise of judicial power, as it had notice, before it acquired its title to the mortgaged property, that the Staten Island Midland Railroad Company was in possession, and unless the order, under which that possession was acquired, was void, it was as binding upon the appellant as it was upon the parties to the foreclosure action.
    Appeal by the Staten Island Electric Railroad Company, purchaser of the mortgaged premises sold under the decree of foreclosure in the above-entitled action, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 19th day of May, 1896, denying its motion for a writ of assistance.
    
      Julien T. Davies, Joseph M. Keatinge and Byron Traver, for the appellant.
    
      Albert Raynaud, for the respondents, the Staten Island Midland Railroad Company, and Alexander S. Bacon, receiver, etc.
   Brown, P. J.:

The appellant acquired title to the property and franchises of the Staten Island Belt Line Railroad Company through a sale made under and pursuant to a judgment of foreclosure rendered in the above-entitled action on June 14, 1894. After the commencement of the foreclosure of the action and prior to the rendition of the judgment, upon the application of the mortgagee, a receiver of the mortgaged property pendente lite was appointed by the court, and on March 18, 1892, said receiver was authorized by the court, upon certain conditions named in the order, to grant permission to the Port Richmond and Prohibition Park Electric Railroad Company to construct, operate and maintain its electric .railroad along and upon the tracks and roadbed of the Staten Island Belt Line Railroad Company on the shore road from the railroad station in the village of Port Richmond on Staten Island, to Jewett avenue in said village, and to make, execute and deliver to said Port Richmond and Prohibition Park Electric Railroad Company an agreement of lease to that effect for the term of the charter of said Belt Line Railroad Company.

Thereafter such a lease was executed by said receiver, and delivered to said Port Richmond and Prohibition Park Electric Railroad Company, and the Staten Island Midland Railroad Company, the respondent herein, having become the assignee thereof, is now operating a railroad upon the aforementioned street.

The order which authorized the receiver to make such lease was granted upon due notice to and after hearing the mortgagee and trustee for the bondholders and against the opposition of said mortgagee and the opposition of other creditors of the mortgagor. No appeal was, however, ever taken from the order, and it stands in full force and effect. The Staten Island Electric Railroad Company-finding said Midland Railroad Company in the possession of and using the tracks and roadbed in the street named, demanded that the possession thereof be surrendered to it, and upon the refusal to comply with such demand moved at the Special Term that the order of March 18,1892, be modified so that the duration of the lease be limited to the time of entry into possession by the purchaser at the foreclosure sale, or in the alternative that said order be vacated and set aside upon the ground that its conditions and the conditions of the lease executed pursuant thereto had been broken by the lessee, and that a writ of assistance be issued to the sheriff, commanding him to remove said Midland Railroad Company from the mortgaged premises, and to put the Staten Island Electric Railroad Company in the possession thereof. This motion was denied, and the Staten Island Company has appealed to this court.

We are of the opinion that the order should be affirmed. We need not now express any opinion as to the propriety of the order of March 18, 1892. It was granted by the Special Term after a hearing of all parties, and no appeal was taken from it, and we should not now summarily eject the lessee from the possession of the property leased, after it has expended large sums of money on the faith thereof. If the appellant desires to question the power of the court to make the order or to attack the respondent’s title to the property on the ground that the conditions upon which the lease was executed have not been complied with, it may do so by action. Such questions are too important to be determined upon a motion. We think the appellant is not in a position to attack the order on the ground that it was not a proper exercise of judicial power. It had notice before it acquired its title to the mortgaged property that the Midland Railroad Company was in possession of the property, and unless the order of the court under which that possession was acquired was void, it is as binding upon the appellant as it was upon the parties to the foreclosure action. The appellant may question the validity of the order, and it may attack the respondent’s title to the property for a breach of any of the conditions of the lease, but it must seek such relief through an action, and not by motion.

The order must be affirmed, with ten dollars costs and disbursements.

All concurred, except Pratt, J.,.not voting.

Order affirmed, with ten dollars costs and disbursements.  