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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

ever, deem the relief sought by the present complaint to be more appropriate, in which case it can appoint a receiver and require the defendants to execute a proper conveyance to vest the title in that officer, to the end that the property be sold and the plaintiff's judgment paid out of the proceeds. In neither of these aspects was the right to a receiver pendente lite made out. If the obstruction be simply removed, the execution will reach Jacob's right, title and interest in the property at the time when the plaintiff's judgment attached as a lien. But the title cannot vest absolutely in the purchaser at the sheriff's sale for fifteen months thereafter. In the meantime the statutory right of redemption will exist, and the debtor will be entitled to possession and to receive the rents and profits of the land. (Wood v. Rabe, 96 N. Y. 424.) The right to these rents and profits during the fifteen months is, undoubtedly, an interest which can be reached by creditor's bill. (Farnham v. Campbell, 10 Paige, 598.) But such a bill proceeds upon the ordinary right of a judgment creditor, after exhausting his remedy at law, to obtain satisfaction of his debt in equity out of any beneficial interest of his debtor in real property, as well as in his personal estate, which cannot be reached by an execution at law. (Cases above cited.) The judgment creditor, however, acquires no specific lien upon the rents and profits of the land of his debtor except by the filing of a creditor's bill founded on the return of an execution unsatisfied. (Strong v. Skinner, 4 Barb. 558.) The respondent, in the brief submitted, notices this aspect of the case, and attempts to answer it in this wise: "It may be said that if this conveyance had not been made, the plaintiff could have only sold the interest of Jacob Riger under execution, and that the sheriff's deed would not have been delivered until fifteen months. This is true, but the courts have held that the judgment debtor's right to remain in possession for fifteen months after a sale under an execution is an equity, of which a receiver can be appointed, and which can be used to pay a judgment in a proper case." The difficulty with this position is that the present action is not a creditor's bill to reach these rents and profits. It proceeds upon an entirely different theory, and seeks to effect quite an independent purpose, namely, the satisfaction of plaintiff's judgment by the sale of the premises following an annulment of the conveyance. There is not an allegation in the

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. complaint with regard to the rents and profits or the debtor's interest therein; and if the action be treated as one to remove a fraudulent obstruction to the plaintiff's process, such allegations would have been inappropriate. If, however, it be treated in the other aspect to which we have referred, still we have the same difficulty with regard to the absence of any allegation upon the subject. It is true that where the judgment creditor asks, not the mere removal of the fraudulent obstruction to his process, but the exercise of the power of the court upon the persons of the defendants to compel them to assign their estate to a receiver, he abandons the lien of his judgment and seeks satisfaction of his debt out of the debtor's property generally. (Chautauque County Bank v. Risley, 19 N. Y. 374.) But, even there, if the plaintiff seeks, in addition to the debtor's equity in the premises to reach the rents and profits accruing prior to the vesting of title in the receiver, and to have such rents and profits, as well as the debtor's equity, applied to the payment of its judgment, it should at least make proper averments upon the subject of such rents and profits and demand appropriate relief with regard thereto. Under section 1877 of the Code of Civil Procedure the court, in a judgment creditor's action, " may, by an order, or by the interlocutory or final judgment in the action, appoint a receiver of any or all of the property of the judgment debtor." This refers to the property which the plaintiff in his complaint seeks to reach, or as to which a discovery is sought. It may be all the property of the judgment debtor, or it may be some specific piece of property. That depends upon the averments. The subject of the present action is not the general property of the judgment debtor, but his right, title and interest in the particular property covered by the conveyance alleged to be fraudulent. It is that, and that alone, which the complaint seeks to reach. In the absence of any claim to the rents and profits, or of any allegation with regard thereto, a receiver thereof should not have been appointed solely under the section in question.

Nor do we think that a case was made for a receiver "before final judgment" under subdivision 1 of section 713 of the same Code. There was no attempt to bring the case within the letter of the section by showing any act of the defendant's tending to materially injure or destroy the property. But even in the broad

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

est application of the section, it was not shown that a receiver was necessary to afford the plaintiff adequate relief. Upon its own papers, there is a sufficient equity in the property to satisfy the single judgment upon which alone this action is founded; and it is, therefore, adequately protected by the lis pendens which it has filed. It is a familiar rule that the court will not divest the owner of immovable and practically indestructible property of its possession before a final hearing, save in a clear case of fraud, where the plaintiff may sustain irreparable injury before final judgment can be had. The general rule is well stated by Mr. High in his work on Receivers (3d ed., § 416), "This extraordinary power," says the learned author, "is exercised with a considerable degree of caution when the contest is as to the title to real estate which is in possession of and claimed by third parties. Indeed, courts of equity are always averse to any interference with the legal title in limine and when a creditor's judgment is not of itself a lien upon lands which have been conveyed by the debtor to third parties, and the only equity of the judgment creditor is a right to resort to the lands by setting aside the conveyance from the debtor, the party in possession under what purports to be the legal title will not be deprived of bis possession by the appointment of a receiver, unless upon a strong case of danger to the property and inability to respond to a decree because of insolvency."

In the case at bar, insolvency is not decisive of the application. because of the extent of the equity in the property. As to this equity, the plaintiff's case is weak upon the facts; and its conclusions are founded upon mere possibilities and suppositions. The properties conveyed are conceded to be worth $43,000; the mortgages thereon amount to but $30,000; while the plaintiff's judgments do not exceed $6,000. These are the material facts upon the question whether a receiver is necessary to give the plaintiff adequate relief. All else is a mere matter of speculation. Thus the plaintiff "thinks" that, in a short time, the mortgages will be foreclosed, and, if so, that the property "might not bring" within twenty or twenty-five per cent of its real value, and that there is not sufficient security in the premises to cover its claims and judgments "and others likely to come against it." As to the latter, it is sufficient to say that the plaintiff does not represent any other claims

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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

save its own. As to the former, the case is without substance. The plaintiff's suppositions rest entirely upon doubt or apprehension.

The order should be reversed, with ten dollars costs and disbursements, and the motion for a receiver pendente lite denied, with ten dollars costs.

RUMSEY, INGRAHAM and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

EDWARD P. HATCH, Appellant, v. JOHN LEONARD, Respondent.

Husband and wife living apart· the husband is liable only on proof that articles sold to the wife were necessaries.

Where a husband and wife are living separate and apart from each other, the presumption that the wife is the agent of the husband, authorized to charge him with purchases made by her, ceases.

In an action brought to recover for goods sold to a wife under such circumstances, the complaint should allege that the goods so furnished were necessaries and that the husband did not supply them or furnish his wife with money with which to purchase them.

APPEAL by the plaintiff, Edward P. Hatch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of October, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Edward W. S. Johnston, for the appellant.
Brainard Tolles, for the respondent.

RUMSEY, J.:

The plaintiff alleged that he delivered to defendant, at his request, certain merchandise, the "sale and delivery being to, and said request and the promise to pay therefor being made by the wife of defendant, defendant's agent." The value of the goods was alleged, and a promise to pay by defendant, and judgment was asked for the value alleged. The defendant denied the allegations of the complaint, and for a separate defense set up that the defendant and his wife lived separate and apart from each other,

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

and that he made reasonable allowance to her for her support and that of her family. At the trial plaintiff proved the delivery of the goods to the wife of defendant and that they were actually used by her for herself and her children. It appeared from the testimony of the plaintiff's witness that the husband and wife actually lived apart at the time of the sale of the goods and had so lived for some years. The wife's testimony, which was read upon the trial, stated that she had been so living apart for some years and that her husband supplied her with money from month to month. The precise amount with which he supplied her did not appear by proof. The court held that when it appeared that the husband and wife were living separate and apart from each other, the presumption that the wife was the agent of the husband to charge him for purchases made by her ceased; that the plaintiff could recover for goods delivered to a wife living separate from her husband, if they were necessaries, and if it appeared that he did not supply them or furnish her with money to buy them, and that the plaintiff, seeking to recover upon that theory of liability, must allege it in his complaint. The learned justice held that the complaint in this action did not contain the proper allegations to entitle the plaintiff to prove the liability of the husband for goods sold to his wife while she was living separately, and he, therefore, excluded evidence offered to prove such facts and dismissed the complaint.

The authorities sustain him in his view of the law. (Schouler Husb. & Wife, §§ 117, 119, 120, and cases cited.) Before plaintiff could recover, it was necessary that he should allege that the articles furnished to the wife were necessaries and that the defendant did not supply them, for it was only in case this was the state of affairs that the husband was liable. The same rule was laid down in an action against a father for necessaries furnished to his infant child, which stand upon the same principle. (Goodman v. Alexander, 28 App. Div. 227.) We have examined the rulings made by the court upon the trial and can find no error in them.

The judgment should be affirmed, with costs.

VAN BRUNT, P. J., BARRETT, PATTERSON and INGRAHAM, JJ., concurred.

Judgment affirmed, with costs.

APP. DIV.-VOL. XXXVIII. 17

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