
    Eliza Weller, as Administratrix of Charles H. Weller, Deceased, Appellant, v. Henry Stengel, Jr., Respondent.
    Second Department,
    July 27, 1911.
    Bankruptcy — contract of receiver — when no personal liability.
    Where a receiver in bankruptcy employs a watchman under the express agreement that he is to be paid out of the bankrupt’s estate, he is not personaHy liable for the services rendered.
    Appeal by the plaintiff, Eliza Weller, as administratrix, etc., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant rendered on the 24th day of May, 1909, dismissing the plaintiff’s complaint.
    
      Arthur L. Hurley, for the appellant.
    
      Henry Stengel, Jr., respondent, in person.
   Per Curiam:

The defendant, as a receiver in bankruptcy for G-. Wagner & Co., under appointment of the United States District Court, employed the plaintiff’s intestate as a watchman, at an agreed price of $3 per day. The employment resulted in a claim for $431, of which sum $169.05 has been paid, leaving a balance due of $261.95. There is- no question that the sum paid was out of the bankrupt estate fund, and this action is brought to recover the balance remaining from the defendant individually. Upon a former appeal'by the plaintiff from a judgment against him this court (134 App. Div. 983) reversed the judgment on the authority of Rogers v. Wendell (54 Hun, 540). The case has been retried, and the learned Municipal Court has found upon sufficient evidence that the defendant specifically contracted with the plaintiff’s intestate that he was to receive his compensation out of the estate or fund of the bankrupt, and, upon this finding of fact, distinguishes the case from that of Rogers v. Wendell (supra), and gives judgment in favor of the defendant, dismissing the complaint. We are of the opinion that this finding of fact takes the case out of the general rule and brings it within the exception. (New v. Nicoll, 73 N. Y. 127, 130.) The fact that the payments already made came.from the trust fund to the knowledge of plaintiff’s intestate gives support to the finding of fact, and if this was the contract the defendant is not liable.

The judgment appealed from should be affirmed, with costs.

Jenks, P.' J., Hirschberg, Burr, Woodward and Rich, JJ., concurred. .

Judgment of the Municipal Court affirmed, with costs.  