
    Norberth Pfeffer, Appellant, v. Philip Kling and Others, Respondents.
    
      Ejectment — an injunction to prevent a receiver appointed in another action from paying over the rents collected i>y Mm, is improper. .
    . In an action of ejectment an injunction cannot be issued to restrain a receiver .. appointed in another action from paying over- rents collected from the premises by him in accordance with the decree in such action, and the title to ■ moneys in the hands of the receiver and the question of his duty to pay them in the manner directed by the decree in such other action will not be determined upon affidavits.
    Appeal by the plaintiff, Norberth Pfeffer, from an order of the Supreme Court, made at the' New York Special Term and'entered in the office of the clerk of the county of New York on the 20th day of May, 1897, denying his motion for an injunction restraining the defendant Husted, as receiver, from paying out the rents, of ■ certain real estate, and for the appointment of á new receiver of such rents pendente lite.
    
    
      Clarence L. Barber, for the appellant.
    
      Abram Kling, for the respondents.
   Patterson, J.:

This is an appeal "from an order of the Special Term denying a motion made by the plaintiff to restrain Thomas' B. Husted, a receiver of certain real estate, in the city of New York, from paying out rents collected by him from said premises,, and also denying an application for the appointment of another receiver of the rents of such premises. The motion is made in an action of ejectment, the plaintiff claiming to be entitled to.the ownership and possession of the premises. The receiver, Husted, is a defendant in the action and he. was appointed by this court by a judgment- entered in February, 1897, in an action brought to set aside a. certain conveyance of the: same premises, .as being in fraud of the creditors of one Rebecca Weisel, who was the owner thereof prior to the 5th of October, 1895, on which day she conveyed them to Joseph Weisel, her stepson, who was also- a defendant in the action in which the receiver was appointed. Mr. Husted was directed by the decree to take possession of the premises, collect the rents thereof, apply the same to the “ care and management ” of the premises, and then to pay to the plaintiff in that action a certain sum of money, and that-he hold the balance subject to the further order of the court. He was also directed by the judgment to sell the premises and to make proper conveyance of the same to vest title in a purchaser. The receiver’s title is as of the 23d day of February, 1897, on which day the decree was entered. It appears in the moving papers that the receiver has been in possession and has collected rents from the date of his appointment. He has also, pursuant to the terms of the decree, sold the premises to the defendant Kling, but the actual transfer of the property by deed has not yet been made.

The plaintiff claims title and the right to possession under a sale on execution against the property of Rebecca Weisel. That execution .wasissued on a judgment recovered by the People of the State of Hew York on March 6,1894. In Hovember, 1894, the premises were sold by the sheriff to one Charles Smith. On December 8,1894, the certificate of sale given by the sheriff was recorded in the office of the county clerk of the city and county of Hew York. That certificate was transferred by Smith to Chaim Weisel, the husband of Rebecca Weisel. In March, 1897, after the decree was entered by which Husted was appointed receiver, Chaim Weisel transferred the certificate of sale to the plaintiff, and on the 8th of March, 1897, the plaintiff obtained a deed from the sheriff under which he now claims and under which he brings this action of ejectment against Kling, the purchaser, from Hosted, and against Husted,the receiver,

It is apparent, therefore, that this action is simply one in ejectment, the question involved being whether Pfeffer, the plaintiff, under the sheriff’s deed, is entitled to the possession of the premises in question as against the receiver and the receiver’s vendee; and the court is now asked by this motion to determine, upon affidavits, that question of title, so far as it affects the ownership of rents which have been collected by the receiver under the authority of his decree, and also to enjoin the performance of his duty to pay out money in accordance with the requirements of that decree.

Ho such interference by the court can be made upon this motion. The plaintiff’s rights must be adjudicated in the regular way. If he is entitled to the possession of the property, he may .also, be entitled to recover the mesne profits thereof while he has been deprived' possession,: from the date at which he was entitled to take possession; and if the receiver had no lawful authority to collect the rents, as against him, he will have his proper remedy-in this action, but he must wait until his title is established in the action brought for that purpose.. There is no more reason- why an injunction should issue to restrain the receiver from disposing of the, rents than there would be to -issue one against , an individual in possession who .was collecting - the rents on his own account. The whole subject is one which can only be disposed of on a full trial in which the plaintiff must recover upon the strength of his own title and in which he must show his clear right to the property, and. to the rents, issues and profits thereof from the day on which his alleged right accrued. It is perfectly clear that the defendants contest his title.

Injunctions are not issued in actions of ejectmentnot even-to restrain waste, when, the right is.-.doubtful,. or where the defendant is in possession claiming adversely. A' court of equity- would not entertain jurisdiction to enjoin under such circumstances. (Storm v. Mann. 4 Johns. Oh. 22.)

The whole purpose of this application .was, evidently, either to have some question of fact affecting, the title .prejudged on this motion, or to do' away with the effect of á decree requiring the .receiver to, do certain things for -the benefit of a stranger to this action.. The. .latter' object cannot be accomplished without the .presence of that person in thé case:

In every aspect in which this motion may be regarded, the order of the court below was right and should be affirmed.

Van- Brunt, P. J.-, Williams, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  