
    Joseph E. Hernandez et al., Appellants, v. Brookdale Mills, Inc., Respondent. Edward S. Malone, Appellant.
    
      Receiver — power of court to make provision for payment of commissions and expenses.
    
    
      Hernandez v. Brookdale Mills, Inc., 196 App. Div. 930, affirmed.
    (Argued November 21, 1921;
    decided December 13, 1921.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1921, which affirmed an order of Special Term vacating a prior order appointing a temporary receiver of the defendant’s property, and directed him to restore to the defendant all of the assets and property of the defendant in his hands, but gave him permission to apply to the court for compensation to be paid by plaintiffs.
    The following .question was certified: “ Where a judgment has been recovered in the Supreme Court and execution thereon has been returned unsatisfied by the sheriff, if the judgment creditor commences an action for the sequestration of the property of the judgment debtor, a domestic corporation, and secures in that action an order appointing a temporary "receiver, which order is never appealed from, but Which order is subsequently vacated at Special Term by reason of the reversal in the Appellate Division of the Supreme Court of the judgment upon which the sequestration action depends, is the fu'nd in the hands of the temporary receiver primarily liable for the fees and expenses of the receiver? ”
    
      
      Vermont Hatch and Joseph M. Hartfield for plaintiffs, appellants.
    
      Louis H. Hahlo for receiver, appellant.
    
      Mbridge L. Adams for respondent.
   Per Curiam.

The order should be affirmed, with costs.

The question certified is answered in the negative. Upon the facts appearing in this record the court at least had the power as a matter of discretion to make provision as it did for payment of the commissions and expenses of the receiver. We do not pass upon the disposition of such items under other circumstances.

His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ., concur.

Order affirmed.  