THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. J. E. Van Etten, for the appellant. William Lounsbery, for the respondent. MAYHAM, P. J.: The case discloses that the defendant Sparling was on the 20th of June, 1890, appointed receiver of the crops and fruit growing on a farm for the recovery of possession of which John E. Van Etten was at that time prosecuting an action of ejectment against this plaintiff, which farm she held under a contract of purchase, and that such action was subsequently prosecuted to judgment against this plaintiff in favor of Van Etten, and in such judgment it was, among other things, adjudged that the plaintiff in such action recover the crops and fruits upon the premises, gathered and put in by the receiver, which were therein adjudged to be the property of the plaintiff in that action. After the plaintiff herein was ejected and dispossessed in that action she commenced and prosecuted this action against the defendant, as receiver, to recover on an alleged assigned account for services rendered for the receiver in gathering crops on the farm and boarding hands while engaged in harvesting thereon. On the trial of this action the judge directed the jury to find a verdict for the plaintiff against the defendant for $125, subject to the opinion of the court. On that verdict the plaintiff entered judgment for the sum of $236.99, recovery and costs. The defendant having failed or neglected to pay this judgment, the Special Term, on the 17th day of November, 1894, made the following order: "Ordered and adjudged that the defendant, Derrick W. Sparling, as receiver, pay or cause to be paid to the plaintiff the judgment recovered by her on the 29th of May, 1893, for $236.99, with interest thereon from the last-mentioned date, with $10.00 costs of this motion, within twenty days from the entry of this order and notice thereof, and that in default thereof the said defendant be held as in contempt of this court." By the recital in this order the judge found that there was received into the hands of the receiver of the produce of the farm, of which he was appointed by the court the receiver, sufficient to Hun.] THIRD DEPARTMENT, JULY TERM, 1895. provide moneys out of which he could pay and discharge the plain tiff's said judgment." The defendant, in his affidavit in opposition to this motion, positively denies that he took possession of any crops, employed any hands to gather the same, or promised or agreed to pay the plaintiff for boarding hands in harvesting or gathering the same. From the order above recited the defendant appeals. The appellant insists that the application to compel him, as receiver, to pay this judgment was not made in the proper action; that as he was appointed receiver in the action wherein John Van Etten was plaintiff and Isabella Merritt and Jacob De Witt were defendants, the application to compel him to pay any moneys in his hands as receiver could only be made in that action. There is great force in this contention, both in principle and upon authority. While we must assume that this action, which was prosecuted with the leave of the court, was properly brought, and for the purposes of this motion that the judgment therein is valid as against the receiver as such, and correctly fixed his liability to the plaintiff, and that execution thereon, while it could not be levied on property in the hands of the receiver, as the same was constructively in the possession of the court through its receiver, the court could, in that action, in which he was receiver, make an order which would properly reach any trust estate in his hands as receiver. (Walling v. Miller, 108 N. Y. 177.) But, as he was not receiver in this action, it is difficult to see upon what principle he can be punished as for contempt, and subjected to fine and imprisonment for the failure to pay a judgment in an action in which he is not a receiver, and for the payment of which he has no trust funds. Doubtless, as an officer of the court, he would be amenable to the order of the court for the performance of the duty imposed upon him in the action in which he was appointed. But to hold him guilty of a contempt of court for failure to pay any and all judgments recovered against him as receiver, would be imposing upon him liabilities which he could not foresee when he accepted the trust, and which do not arise out of the trust itself. THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. But this question seems settled upon authority of many wellconsidered cases. In Walling v. Miller (108 N. Y. 177) the rights of a party having a lien by judgment and execution on property in the hands of a receiver were clearly pointed out where the lien of the execution had attached before the appointment of the receiver, and the court says: "The lien of the execution was not destroyed by the appointment of a receiver, but the rights and interests of all parties in the property were thereafter to be adjusted by the court which appointed the receiver, and the property could not be taken out of the possession of the receiver and sold upon the execution without leave of the court. The execution creditor could bring his lien to the attention of the court in the action in which the receiver was appointed, and ask to have the execution satisfied out of the proceeds of the property." Such a course would be manifestly just to all parties claiming an interest in the property, as in that action Van Etten, who, by the judgment in ejectment, was adjudged entitled to the property, the defendant in that action who is now claiming the proceeds of the property of the receiver, and the receiver, who, as the officer of the court, stood indifferently between the claimants, liable to hand the proceeds of the property to the one entitled to the same, would all be before the court, to do and receive what might be adjudged for or against them respectively. In no other way could the rights of Van Etten, Merritt and the receiver be fully adjusted as to all the parties. Clearly, if, by the judgment in the ejectment case, any property in the constructive or actual possession of the receiver was adjudged to belong to the plaintiff in that action, the receiver should not in this action be compelled to pay it over to the defendant, or to account and pay over to her the proceeds or value of the same, and all the parties to that action, as well as the receiver, should be before the court in a motion in that action for a complete determination of the rights of all the parties. In Rinn v. Astor Fire Insurance Co. (59 N. Y. 148) the plaintiff brought an action against the defendant on a policy of the defendant, and pending the action the defendant became insolvent, Hun.] THIRD DEPARTMENT, JULY TERM, 1895. and in an action in equity by another party a receiver was appointed. Subsequent to the appointment the plaintiff recovered a judgment against the defendant, and thereafter moved in his action to compel the receiver who had been appointed in the equity action to pay the judgment. ANDREWS, J., in delivering the opinion of the Court of Appeals reversing the decision of the General Term granting such motion, uses this language: "Without considering or passing upon the question whether the plaintiff has a remedy, or was, or is entitled to a distributive share in the fund which came to the hands of the receiver, we reverse the order of the General Term on the ground that her remedy, if it exist, must be sought by application to the court in the district in which the receiver was appointed, and in the action in which the appointment was made." In the Matter of the Petition of Mallory, Collector, etc. (18 N. Y. St. Repr. 499), DWIGHT, J., says: "The rule seems to be well established that, for the purpose of reaching funds in his hands, the application must be made in the action in which the receiver was appointed." We have been referred to no adjudication which breaks the force of the decisions above referred to, and are of opinion that in primciple they are analogous to the case at bar. It is urged by the learned counsel for the respondent that the defendant, as receiver and an attorney, is an officer of the court and must obey its orders; but the answer to that seems to be that as receiver he is not an officer of the court in this action, and as an attorney of the court he sustains no fiduciary relations to this plaintiff, and, as such, holds no trust funds belonging to her. Without considering the other questions raised by the appellant, we think the order of the Special Term, for the reasons above suggested, was erroneous and should be reversed. Order reversed, with ten dollars costs and printing disbursements. PUTNAM and HERRICK, JJ., concurred in result. Order reversed, with ten dollars costs and disbursements. THIRD DEPARTMENT, JULY TERM, 1895. [Vol. 88. JOHN CLANCY, Appellant, . THE TROY AND LANSINGBURGH Negligence-contributory negligence in crossing railroad tracks before an approaching car. A truckman was driving upon a street upon which a motor car was approaching him from behind and it became necessary for him to cross the track of another railroad company in order to pursue his journey. When about fifteen feet from the intersection of the tracks he saw a motor car on the latter road approaching and at a distance from him at the time of from fifty to seventy-five feet. He endeavored by hurrying to cross the track in front of him, but miscalculated the time and distance and a collision occurred. Held, that the plaintiff undertook to determine at his peril whether he could cross the track in safety; That the risk of that determination was his own, and that he was guilty of contributory negligence. APPEAL by the plaintiff, John Clancy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 22d day of September, 1894, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and a jury, and also from an order entered in said clerk's office on the 21st day of September, 1894, denying the plaintiff's motion for a new trial made upon the minutes. John T. Norton and James B. Egan, for the appellant. Thomas S. Fagan, for the respondent. MAYHAM, P. J.: This action was prosecuted by the plaintiff, appellant, against the defendant for alleged negligence of the defendant in the management of one of its motor cars by which it collided with the plaintiff's wagon resulting in an injury to the wagon and to the person of the plaintiff. The case discloses that the plaintiff was driving a truck wagon loaded with beer casks and drawn by a team of heavy horses, and that in crossing the track of the defendant's railroad the motor car on said track collided with the hind wheels of the plaintiff's wagon, |