
    In the Matter of the Petition of Arthur C. Jacobson and Others, Respondents, for Leave to Sue Frederick Uhlmann, as Receiver of The Brooklyn Elevated Railroad Company, Appellant.
    
      Action by abutting owners against an elevated railroad company—• a temporary receiver of the company appointed in a mortgage, foreclosure suit may be made a party.
    
    A temporary receiver appointed in an action brought to foreclose a mortgage given by an elevated railroad company who has ■ been given power to defend all pending actions against the company and to manage the road, may properly be made a party defendant in an action brought before his appointment by abutting property owners against the railroad to recover damages to the property caused by the construction of the road.
    
      Appeal by Frederick Uhlmann, as receiver of The Brooklyn Elevated Railroad Company, from so much of an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 16th day of October, 1897,- as grants leave to the petitioners to proceed with certain actions against The Brooklyn Elevated Railroad Company and others, and to make the receiver of The Brooklyn Elevated Railroad Company a party defendant. ■
    
      George W. Wingate, for the appellant.
    
      James A. Sheehan, for the respondents.
   Goodrich, P. J.:

The petitioners commenced their1 several actions against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company to recover the rental and fee damages to their property in various streets, caused by the construction of the latter company’s railroad, which was leased to and operated by the former company. The actions are at issue and ready for trial.

'An action was brought by the Central Trust Company of New York, as trustee, against the Brooklyn Elevated Railroad Company to foreclose a mortgage given by the latter to the former company upon all the railroads and other real and personal property of such railroad, and all franchises, easements, privileges, etc., owned or leased by it; and in such action, on March 25, 1897, Frederick Uhlmann was appointed receiver of such property with power to ' defend all pending actions against said Brooklyn Elevated Railroad Company, and to manage and operate the road, which he continues to do.

The Special'Term entered an order permitting the petitioners to proceed with their several actions and by supplemental complaint to add the receiver as party defendant. The receiver appeals from so much of this order as permits the plaintiff to make him a party, contending that the receiver is only appointed pendente lite, and is a mere temporary officer of the court, charged only with the duty of operating the road.

To reverse the order would be to postpone the prosecution of the petitioner’s action until the final determination of the foreclosure suit, the sale of the road and the discharge of the receiver. What time will be occupied by such proceedings is not very apparent. “ It may be for years, and it may be forever.” There have been instances where a receiver of an insolvent railroad has continued to operate it until compelled by action of creditors to close his trust, aiid we cannot assume that there is any definite time within which the present receiver will cease to act. It is not just to postpone the proceedings of the petitioners for so indefinite a period.

The petition alleges that the order under which the receiver was appointed authorized him to defend all actions instituted against him and also to appear and conduct the defense of any action pending against the company. In his answering affidavit, the receiver alleges that he is advised by counsel that he has a reasonable time to decide whether or not he will institute condemnation proceedings to acquire and pay for easements, and that an action in equity cannot be maintained against him for fee damages until such opportunity has been offered him.- As he has been receiver since March, it is not difficult to see that if the consideration of this simple question, for the solution of which he has right to counsel, has already required a period of more than seven months, there is serious danger that other matters may occur which will result in a further and somewhat lengthy postponement of the petitioners’ right to trial, unless this application is granted. It may also be observed that the order appointing the receiver conferred upon him at once the duty and obligation of doing precisely what the petitioners desire, viz., to appear and conduct, if he so desired, the defense of all actions against the company.

We do not think it necessary to consider any questions as to- the ultimate rights ■ of the petitioners to relief, and it makes no difference that the purchaser at the foreclosure sale may be required to take the road cum onere. In the analogous case of Peckham v. Dutchess County R. R. Co. (81 Hun, 399; affd., 145 N. Y. 385) it is expressly decided that a receiver of a railroad, pendente lite, may be compelled to erect a farm crossing under the line of its road, and be restrained from any use of the road until the same is done. It is true that in that case there had been a judgment against the company directing such construction, but' that makes no difference in the principle which must control our decision. The petitioners •claim the existence of certain rights of action against the company, and, while it is true that these have not been adjudicated, yet this order does not contemplate any such remedy as was given in the cited case. That question may recur when the petitioners have had ■opportunity to obtain their judgments, but they should not be prevented by any order of the court from prosecuting their rights to a ■determination.

It may also be suggested in this connection that we are not prepared to hold that the right to recover any damages which the petitioners have suffered can be defeated by the execution of a mortgage covering and partly based upon property rights alleged to have been taken from- them by the defendant railroad company in the construction and operation of its road; and that they should be allowed an early opportunity of having their rights determined. •

The order is affirmed, with ten dollars costs and disbursements.

All concurred, except Gulden, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  