Baker v. Baker , 36 A.D. 485 ( 1899 )

Per Curiam:

This action was instituted for the partition of certain real estate -of which Edwin Baker, the father of 'the parties, died seized; During the pendency .of the action a motion was made for the appointment of a receiver of the rents and profits of the property, which the plaintiff, at the time, was collecting. This was denied on the ‘plaintiff executing a bond conditioned for the payment to the othér parties in interest of their share of the rents. With this condition the plaintiff complied. Afterwards the motion for the appointment 'of a receiver was renewed and the plaintiff was appointed receiver. 'Judgment of partition was entered in the action. On appeal this division of the court reversed the judgment and dismissed the complaint, holding that the will of the testator effected an equitable conversion. ■ Subsequently the widow brought abaction to construe the ■will and for distribution of the estate. In this last action-judgment was' entered directing . the payment of their several shares to the parties in interest. .Afterwards, on the application of-, two of the .-.defendants..in the partition suit, an ord.er was made in- this.action directing the plaintiff, both individually and as receiver, to account to the defendants for their shares of the rents, and also enjoining the payment to the plaintiff of' the sum awarded by the decree in the widow’s action. From that order this appeal is taken.

By the judgment dismissing the complaint the court did not lose jurisdiction of the funds brought into court under the receivership. The order, so far as it directs, the plaintiff as receiver to account, is, therefore, correct. But the defendants’ only remedy for rents collected prior to the time of the appointment of the receiver must be by action on the .bond given as a condition for denying the receivership. The court had no power in this action to stay the execution of the decree in the widow’s action. Such a stay is in reality an injunction, and the pleadings and prayer for relief in this action, even when alive, presented no case authorizing an injunction.

The order should be affirmed, so far as it directs the plaintiff to' account as receiver, and in other respects reversed, without costs of this appeal to either party.

All concurred.

Order affirmed, so far as it directs plaintiff to account as receiver, and in other respects reversed, without costs of appeal to either party.