
    Magdalena Rollwagen, App’lt, v. Arthur G. Rollwagen, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    L. Tenants in common—Receiver.
    Where it appeared in an action by a tenant in common of real estate for the appointment of a receiver that the plaintiff had not been called upon to pay any of the interest which had accrued upon taxes, where payment was alleged to have been improperly deferred, and that complaints made to the board of health of New York in respect to the sanitary condition of the property were not unusual and that the defects had been remedied, Held, that the action could not be maintained.
    ■ Evidence — Matters subsequent to action brought cannot be shown.
    Complaints to the board of health made subsequent to the commencement of the action, were held to have been properly excluded.
    Appeal from a judgment at special term dismissing plaintiff’s lomplaint.
    
      C. H. Bovee, Jr., for app’lt; Jacob F. Miller, for resp’t.
   O’Brien, J.

The complaint alleges in substance that the laintiff is the owner of an estate in seven undivided fifteenths of tie premises; that Emily S. Rollwagen is seized of an estate in ower in said premises subject to the life estate of plaintiff, and lat the defendants, Florence M. and Arthur 0. Rollwagen, own íe fee subject to said life interests.

These premises consist of four houses in the city of New York, ad the real purpose of the action is to secure the appointment of receiver of the rents and profits.

Subsequent to the entry of the decree under which the interests : the parties were fixed and in September, 1879, the defendant mily S. Rollwagen entered into possession of the property and 3gan collecting the rents by consent of the parties.

The grounds urged for the appointment of- a receiver are the leged mismanagement of the premises in the following parinlars:

First. That the taxes were not paid promptly, and by reason ereof the said property had been advertised for sale by the city.
Second. That she failed to keep said property filled with good tenants.
Third. That she failed to keep the premises in repair, so that the board of health filed complaints.
Fourth. That excessive charges were made for repairs.
Fifth. That unreasonable delay ensued in rendering accounts and in paying to plaintiff her just proportion of the rents.

It will not be claimed, I think, that upon the trial any effort was directed to sustain the allegations that defendant failed to keep the property filled with good tenants, or that excessive charges were made for repairs.

This would leave to be considered the testimony offered in regard to the non-payment of taxes promptly, the failure to keep the premises in repair, and the unreasonable delay in rendering the accounts and paying to plaintiff her just proportion of the rents. At the outset a serious question is presented as to whether this action will lie. The relief sought is an injunction and a receiver. These are provisional remedies incident to ends, but no1 ends in themselves. Ro right of property is disputed or invaded, and I should be inclined to the view that the action itself coulc not be maintained, were it not that a construction can be given tc the complaint from which it may be assumed that the action ii one for an accounting in which as an incident therein it is sough to have a receiver appointed. It is unnecessary, however, to de termine this question, for, assuming the action itself to be main tamable, there has been an utter lack of that proof which wai essential to entitle the plaintiff to any relief.

In regard to the question of the payment of taxes, while it ma; be conceded that they were not paid it is equally true that prio to the commencement of this suit the taxes, with interest thereon had all been paid by defendant. By the delay no damage re suited to the plaintiff. For though she paid her proportion of th taxes, she was not asked to contribute anything towards the pay ment of the interest that had accrued thereon from the time c confirmation down to the date of payment.

As to the complaints from the board of health, while it ha been shown that these were made, we must remember that tb property in question consisted of tenement houses, and the cha: acter of the complaints were neither unusual nor extraordinary Besides, it was shown that whatever complaints were made pric to the commencement of the action, the defendant complied wit the same to the satisfaction of the board of health.

The effort to show that subsequent to the commencement < the action additional complaints were made by the board of healt was properly excluded for the reason that whatever rights plain iff may have had for the maintenance of the action were such ; accrued prior thereto.

As to delay in gendering accounts and paying plaintiff her ju proportion, while some proof is offered to show that at interva considerable delay ensued, this was in part explained by showii that the character of the occupants was such that it was impossib to collect the rents from the tenants promptly.

Thus explained, the delay was not so unreasonable or willful as to deprive defendant of the management of the property.

That accounts have been rendered and accepted without objection as to their correctness is not seriously disputed, and it is difficult to see upon what theory they are now to be disturbed in the absence of allegations of proof showing mistake or fraud or both. And neither of these things is alleged or proved.

Plaintiff’s grievances and complaints, if they ever had any substantial foundation, were of the past and had no existence at the time of the commencement of the action. The most that could be said is that plaintiff’s ideas of the manner of managing the property did not in all respects agree with the defendant’s; but in the absence of proof showing acts of mismanagement which resulted to the plaintiff’s injury, no ground for action is shown. For instance, plaintiff insists that the rents could be collected to better advantage by an agent to whom a commission was paid than by the defendant herself. Defendant’s position with reference to the appointment of an agent has been, that it would not only entail additional expense for commissions but also risk a percentage on repairs made to the premises being paid by those doing the" work to the agent, without securing any greater rentals or fuller )ccupancy.

As to their respective positions in reference to employing an igent the proof would seemingly favor the defendant’s, for it is shown that while the rents of the premises formerly in charge of m agent were but $5,500, they have under the defendant’s management steadily advanced until at the present time they amount ;o about $7,500.

It is hardly necessary to ádd that it is the defendant’s duty to reep the premises in a tenantable condition, to pay the taxes sromptly and to render accounts and pay the plaintiff her proporion thereof without unreasonable delay, and for a failure in these espects the plaintiff in a proper action would have a cause of omplaint. But after an examination of all the evidence in this ase it is reasonably certain that at the time of the commencement if this action no adequate reason existed, nor was any proof offered vhich would have justified the court in taking the management f the property from the possession of the defendant, where it had ieen placed by consent of the parties, and turning it over to a reeiver. The exceptions which were taken both to the admission f some of the defendant’s evidence and to the exclusion of some f plaintiff’s, have been examined and are not such as would jusify a reversal of the judgment. We are of opinion, therefore, rat the disposition made of this case upon the trial by the learned idge in dismissing the complaint was proper and the judgment íould therefore be affirmed, with costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.  