
    Susan E. Corser, Resp’t, v. Horace Russell, et al Receivers, etc., Appl’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    1. Receivers—Liability of—When it ceases.
    Receivers are officers of the court, and the property in their hands is in custodia legis. There are various methods by which they can be divested oí their position, and when any one of these is adopted the trust ceases, and all rights and powers depart. There is no principle upon which they can be held liable for any losses occurring after the possession has been changed or surrendered. Brady, J.
    3. Same—Evidence of deposition when admissible.
    When an action is brought against the alleged receivers of a company for damages caused by the destruction of plaintiffs property, though the depositions of the defendants as receivers are not pleaded, yet it is error to exclude the evidence showing that the defendants had ceased to be, and had no rights as receiver. The production of the deed to the newly appointed receivers, is sufficient prima facie to show the commencement of proceedings ending in its execution. Brady, J.
    3. Same—Chance of possession when presumed.
    The oiler to prove the appointment of a referee by the court, who conveyed all the property and rights connected with it and the deed of conveyance of the new receivers is improperly excluded, when it would appear that the defendents as receivers at the time of the loss had been entirely'divested of the proprietary right. The title would take with it the right of possession, and the cnange of possession might properly be presumed from the lapse of a reasonable length of time. Per Curiam.
    
    4. Same—Contracts made with receivers, how understood.
    All contracts made with receivers in that capacity, are so made subject necessarily to the contingency, that their powers and office may be terminated by the court without notice to the contracting parties. Per Curiam.
    
    Appeal from the judgment on verdict.
    
      Ashbel Green, for app’lt; M. L. Marks, for resp’t.
   Brady, J.

This action was brought to recover damages; sustained by the destruction of the plaintiff’s trunk and contents by fire while in the custody, as alleged, of the defendants as receivers. It was not set up as a defense that, prior to the fire they had been deposed, or ceased to be receivers, but on the trial they offered to prove that Abram 5. Cassidy, as referee appointed by this court, by deed executed December 5th, 1885, conveyed to J. Pierpont Morgan and others, all the right of the defendants as receivers, and all property, real, personal and mixed, held for or in connection with the construction, operation and maintenance of the New York, West Shore and Buffalo railway, and all rights connected with or relating to the same, or the uses, or purposes thereof, but it was objected to as incompetent, and the objection having been sustained the defendants duly excepted. This ruling the plaintiff seeks to sustain by contending that there was no evidence that the defendants, ceased to be officers of the court.

The object of the offer was to show that they had virtutually ceased to be and that they had no rights as receivers from the date mentioned, such rights and the body of the-trust out of which they sprung having been transferred by a legal process. - The testimony was clearly competent inasmuch as the fire did not occur until January, 1886, and the defendants could not, it would seem, by any possibility not being in charge, be liable for the loss assessed. It is. not for the plaintiff now to say that the defense which this proof was designed to establish was not set up in the an swer. If that objection had been taken, an application to-amend might have removed the obstacle. The objection was to the competency of the proof generally and not otherwise. The production of the deed was sufficient prima facie to show the commencement of proceedings, ending in its execution, and it could have been followed up by proof of the necessary proceedings, if requested, to show the appointment of the referee and the proper performance of his duties as such. This must be the presumption.

Receivers are officers of the court and entitled to protection. The property in their hands is in custodia legis, and their possession is the possesssion of the court. 3 Wood’s Railway Law, 1658; High on Receivers, S., 134. There are various methods by which they can be divested of their position by the action of the court, of which they are an arm, and when any one of these methods is adopted the trust ceases and all rights and powers depart. There is, therefore, no principle on which they can be held liable for any losses occurring after the possession has thus been changed or surrendered. It may be that receivers who continue after the order deposing them and until their successors are sworn in, can be held responsible for acts done ad interim, but this case presents no such element. There is, indeed, evidence to warrant the suggestion that when the fire took place, the plaintiff’s property was in the custody of the New York Central and Hudson River Railroad Company, and it is a contention on behalf of the defend ants that from the 5th of December, 1885, to the time of the fire, the plaintiff’s trunk had been in the keeping of that company as warehouseman.

The judgment for these reasons is erroneous and must be reversed and a new trial ordered, with costs to abide the event.

Per Curiam.

It seems necessary to add to the opinion of Mr. Justice Brady for the decision of this appeal, that the contract of the defendants with the plaintiff for the storage of her baggage, was made by them in their capacity of receivers, and subject necessarily to the contingency alway present, that their powers and office as such might at any time be terminated by the court, whose officers they were, and without notice to her. And such termination of their offices would of course end their obligations to her as the bailees of her property. After that the succeeding bailees, and not these receivers would be accountable to her, if any person would be, for the safe custody, or loss of her property. This result follows from the fact that the contract ivas with them as receivers, and not as inviduals.

In their offer of proof they proposed to show that on the 5th of December, 1885, a referee appointed by the court had conveyed to J. Pierpont Morgan and others, all property, real, personal and mixed, held for, or in connection with the construction, operation and maintainance of the railway company, and all rights connected with it, or the uses and purposes thereof. And offered such deed in evidence. This offer was very broad, and if it had been allowed to be proven, the fact would have appeared that the receivers had at that date been completely divested of all their proprietary rights, and services of operation and maintainance of the railway property and the uses thereof. And from such proof it might be well argued that as the right had passed so completely with the conveyance, the fact of possession had also accompanied it. The title itself would take with it the right of possession and it would not be an unreasonable inference, to presume from that fact as the jury might very well have done, that the grantees in the conveyance entered upon the possession of the property and interests conveyed. And this inference of possession is very decidedly advanced by the circumstance that the destruction of the baggage by fire did not occur until the twenty-fourth of the next month. Before that date there was very ample time for the grantees to assume and take the possession of the railway, and all of the company’s property. It was a most natural event to follow the conveyance. And as it was made under the authority of the court, a delivery and assumption of possession, in the ordinary course of probabilities, also became a duty. If the proof had been received it might very well have changed the result of the trial. And the exception to the decision rejecting it, is well founded.

The judgment will be reversed and a new trial ordered, with costs to abide the event.  