
    John J. P. Read, App’lt, v. Charles N. Brayton, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    Stay-Action against clerk of court.
    An action against the clerk of the court to recover property delivered to him by express order of the court cannot be maintained without permission from the court, and where an action has been so commenced the court may stay the proceedings or punish the plaintiff for contempt, or both.
    Appeal from an order of the Erie special term staying the prosecution of this action.
    
      O. O. Cottle, for app’lt; John Cunneen, for resp’t.
   Haight, J.

It appears that the plaintiff deposited with the Marine Bank a sum of money for which it issued to him two certificates of deposit, and that he subsequently brought action against the bank to recover the amount thereof. Upon the trial one Rockwell was summoned by a subpoena duces tecum, to produce the certificates. He appeared, and upon order of the court produced them, but claimed that they belonged to the estate of Elizabeth A. S. Rockwell, deceased, and that he held them as her personal representative. The court thereupon made an order that they be delivered to the clerk of the court, and that he retain them in his possession subject to its further order. Charles A. Orr was at that time the county clerk, and as such the clerk of the court. He took possession of the certificates pursuant to the order, and upon the termination of his term of office turned them over to his successor, the defendant in this action. Upon the trial of the action against the bank the court ordered judgment in favor of the plaintiff, which judgment has been reversed by the court of appeals, and sent back for a new trial. Read v. Marine Bank, 136 N. Y., 454 ; 49 St. Rep., 675.

The plaintiff then moved at the special term for an order directing the clerk to deliver the certificates to him, which order was denied, but without prejudice to renewal thereof upon notice to Rockwell or the personal representatives of Elizabeth A. S. Rockwell, deceased. Thereupon this action was brought, and papers in replevin placed in the hands of the sheriff, who demanded from the defendant the certificates in question.

We do not understand that this action can be maintained. The defendant is the clerk of the court, and the custodian of the certificates, made such by the express order of the court. He is, therefore, an officer of the court, represents it, and his possession is that of the court.

In the case of Noe v. Gibson, 7 Paige Ch., 513, the chancellor says : “ It is well settled that after a receiver is appointed and has taken the rightful possession of the property, it is a contempt of court for a third person to attempt to deprive him of that possession by force or even by a suit or other proceeding against him without the permission of the court by whom the receiver was appointed. * * * The same principles are applicable to every other interference to the possession of a receiver, sequestrator, committee or custodee who holds the property as the officer of this court, as his possession is in law the possession of the court itself.” See also Albany City Bank v. Schermerhorn, 10 Paige Ch., 263; Walling v. Miller, 108 N. Y., 173-178; 13 St. Rep., 93 ; Higgins v. Wright, 43 Barb., 461-468.

It will thus be observed that the defendant, as the custodian of the certificates, is placed under the same protection as a receiver.

When an action has been commenced against a receiver without leave,' the court may stay the proceedings or punish the plaintiff for contempt, or both. James v. James Cement Co., 8 St. Rep., 490; De Groot v. Jay, 30 Barb., 483 ; Taylor v. Baldwin, 14 Abb. Pr., 166.

It may be said that the court improperly took the certificates of deposit from the possession of Rockwell and impounded them with the clerk, but Rockwell is not here complaining. The order still remains in force and unreversed. If improvidently granted it may be corrected upon motion.

The order appealed from contains a provision to. the effect that the stay should continue until the personal representatives of Mr. and Mrs. Rockwell are brought in as parties to the action, and that then the clerk be permitted to turn the certificates over to the county treasurer. We see no reason for changing the custodian of the certificates or in continuing this action until other parties are brought in. The defendant is entitled to have the prosecution of it absolutely restrained.

The order appealed from should be modified by striking out all after the word “brought ” in the second line of the 55th folio of the printed case, and as so modified affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Bradley, JJ., concur.  