Murray v. Cantor , 41 N.Y.S. 652 ( 1896 )

Schuchman, J.

This is an appeal from a judgment entered on a verdict of a jury, directed by the. court.

The defendant’s answer admitted the first cause of action set up in the complaint, and the court dismissed the complaint as to the second cause of action.

The second cause of action was for damages for a breach of a contract; The plaintiff , alleging that the Piquá Club Association had made á written contract with him, whereby-he was employed as house manager in. their clubhouse, known as the Hew Manhattan Athletic Club, on or about February 9, 1895, for the period of one year, at an annual salary of $2,500; that he was wrongfully discharged on June 13, 1895, and was .thereby damaged in the sum of $1,638.91, for which damages- he asked judgment against the defendant as receiver.

The evidence shows that on June 3, 1895, the Supreme Court, by an order, appointed the defendant, Jacob' A. Cantor, receiver of the Piqua Club Association, a corporation, with the usual powers and duties according to the laws of the state of .Hew York, and the practice of said court, and authorized said receiver “ To collect and receive the debts, demands and other property of said corporation and to preserve the property and proceeds of the debts and demands collected,”

That said receiver appointed one Von Riel his deputy to take charge of said' property; that said receiver told Mr. Murray, the plaintiff, that he wished him to continue as house, manager; that he did not want any change made at all, and that Mr.. Murray should be subordinate to Mr. Von Biel, and was subject to Mr. Von Biel’s orders as deputy, and that on June. 13, 1895, said Von.Biel told Mr. Murray, the plaintiff, “Leave the house,. I dis-. charge you, you are discharged,” and that thereupon said plaintiff ■left the service. ■ •

The receiver had no powers except such as are conferred by the order of his appointment, by statutory provision and the course and practice of the court, and cannot appoint a deputy without special order of the-court. 20 Am. & Eng. Ency. of Law, 111-113; Corey v. Long, 12 Abb. Pr. (N. S.) 427; Dickerson v. Van Tine, 1 Sandf. 724; 2 Paige, 452.

The.receiver’s powers were defined by the order of his appointment. Said powers thereby' conferred are identical to the ones specified in section 1788 of the Code of Civil Procedure. The receiver is a mere custodian and manager of the property, under-.the direction of the court, during the pendency of the action. Herring v. R. R. Co., 105 N. Y. 340.

_ The receiver was not liable upon the contract of the plaintiff with the Piqua Club, and'had' no-power to break'it; having none, he could not delegate any such power to his deputy. The deputy, therefore, could not discharge the plaintiff, and if the plaintiff .accepted the unlawful' discharge of the unauthorized - deputy and left the services of the club, although he may have acted in ignorance of his rights, he broke the contract himself and certainly has no remedy against the receivér.

The judgment is right and is affirmed, with costs.

Van Wyck, Ch. J., and Fitzsimons, J., concur;

Judgment affirmed, with costs.