
    The National Park Bank, App’lt, v. Warren R. Goddard et al., Def’ts. Henry Winthorp Gray, Rec’r, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    Beceiver—Special—Intervention.
    A special receiver, appointed to care for and preserve property pending an action to settle conflicting claims thereto, is a mere stakeholder, and can have no interest in the settlement of the controversy, and should not, be permitted to intervene.
    Appeal from order referring certain questions as to the rights-of the parties to certain property held by the receiver, and allowing the receiver to intervene.
    
      Otto Horwitz and F. C. Barlow, for app’lt; G. Zabriskie, for resp’t.
   Vah Brunt, P. J.

In May, 1891, the plaintiff, having commenced an action against the firm of Levy Bros & Co., obtained’ an attachment, which was levied upon their property. Thereafter the several defendants herein commenced actions of replevin against the sheriff to recover various parcels of the property so-attached. Subsequently this action was commenced by the plaintiff for the purpose of obtaining an adjudication upon the claims of the various parties in respect to such property, and the respondent herein was appointed receiver of such property pending the determination of the action. In April, 1892, the receiver presented his petition to the court, alleging, among other things, that many persons had applied to him for the delivery to them of goods held by him, and in some instances orders had been mad© by the court referring it to a referee to take proof of the title of the goods, etc.; that three or four claimants of goods had, without notice to him, obtained orders directing him to deliver goods to-them upon payment of all liens and charges for the care and custody and preservation of the property; that some of these orders-directed him to deliver goods which were not and had never been in his possession or under his control, and other goods which had been sold by him pursuant to the order of the court; and the petitioner further alleged that doubts had arisen as to whether the parties who claimed goods in his custody were entitled to delivery of the same merely upon the consent of the parties, without proof of title; and, after making various other allegations, the receiver asked the court for instruction on these points, and also for instructions as to whether independent proceedings of the several defendants to obtain possession of the goods ought to be stayed.

An order to show cause was made, and on the return thereof some of the defendants in the action filed affidavits. Thereupon an order was made providing, in effect, that the several defendants who claimed to be the owners, and entitled to the possession, of the goods in the receiver’s hands should have leave to apply to-,the court for an order adjudging them to be the owners thereof, and that the possession of such goods be delivered to them; and, further, that the receiver and any party to the action might file answers to such petitions, etc.; and a referee was appointed intake proof, and report to the court. From this order the plaintiff' appealed, and objects to that part of the order which authorizes the receiver to intervene. Mo objection having been raised upon this appeal to the order of reference as such, it will not be at all necessary to discuss the same in disposing of this appeal, and wer■will confine ourselves to that part of the order specially objected to.

It seems to us perfectly clear that the receiver has no interest whatever in the settlement of the controversies between the parties to this action in respect to the title to the goods in his possession. He is a mere stakeholder, and can have no interest in .any such controversy. If it is urged as a reason for such intervention that parties have obtained improper orders from the ■courts for the delivery of goods, it is sufficient to say that if, in the making of the orders, the court observes the ordinary and regular course- of procedure, viz., a refusal to act except upon •notice to all the parties who have appeared in the action, no difficulties need arise. This plain rule of practice, however, seems to have been departed from in the order now in question; but as no -objection is raised upon this .point, it is not considered. The -court has no right to- impose upon the fund in question the expenses of the receiver attending upon and taking part in the trial of issues with which he has no concern, and the question as to whether a piece of property in his hands, of which lie.is simply "the stakeholder, belongs to either one of several defendants or to the plaintiff, is a matter in which he has no interest. It is undoubtedly true that the receiver may be interested in seeing that the various claimants of the goods in his possession shall bear their proportion of the expenses of the receivership, including the receiver’s compensation. But, as we read the order, no such -question has been refefired to the referee, nor is the referee authorized to pass upon any such question, and consequently the receiver has no interest before the referee to protect in that respect. We think, therefore, that the order should be modified by striking out that part of the order which authorized the receiver to intervene before the referee, upon the trial by him of the title of the property in the receiver’s hands, and as modified .affirmed, without costs.

O’Brien and Lawrence, JJ., concur.  