August F. Mack, Respondent, v. Robert H. Stanley and Henry W. Brackett, Appellants

August F. Mack, Respondent, v. Robert H. Stanley and Henry W. Brackett, Appellants. Receiver— not appointed in an action for damages arising out of a stockbroker's . false representation that he had purchased stock, although the broker alleges that he bought and has possession of the stock. Where an action to recover damages for false representations made by the defendants as stockbrokers is brought upon the theory that the defendants pretended to have purchased stock for the plaintiff and induced him to place moneys and securities in their hands as margins therefor, when in reality they had not purchased .any stock for him, the fact that the defendants state that they actually bought the stock for the plaintiff and have it in their possession and threaten to sell it unless the plaintiff will comply with certain demands, does not entitle the plaintiff to have a receiver of the stock appointed, as the action being founded altogether in tort, no property is the subject thereof, and section 713 of the Code of Civil Procedure, which governs the appointment of a statutory receiver, relates to the case of a party who establishes an apparent right to or interest in property which is the subject of the action. Appeal by the defendants, Robert H. Stanley and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1902, appointing a receiver of certain shares of stock, alleged to be the snbject matter of the action. Everett Masten, for the appellant Stanley, William W. Mumford, for the appellant Brackett. Edwin L. Kalish, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: This order should be reversed. Authority to appoint a receiver is conferred by section 113 of the Code of Civil Procedure, which, among other things, provides that the court may appoint a receiver before final judgment on the application of a party who establishes an apparent right to or interest in property when it is in the possession of an adverse party and there is danger that it may be removed, beyond the jurisdiction of the court, or lost, materially injured or destroyed. This is a case in which the authority must be derived from the statute and not from the general power of the court to appoint a receiver, for the facts, as they appear, would not authorize the exercise of the jurisdiction irrespective of the Code provision.. That provision relates to the right of a party who establishes an apparent right to or interest in property, which is the subject of the-action. In this case no property is the subject of the action. The-action is brought to recover damages for fraud, deceit and misrepresentation on the part of the defendants as stockbrokers, by which they induced the plaintiff to place moneys and a bond in their bandeas margins to be used in transactions in the purchase and sale of stock. The gravamen of the action is,fraud and deceit. There is. no claim made for any specific property. The action does not. involve property as such, but is founded altogether in tort. The; plaintiff’s action proceeds upon the theory that there is no property to which he is entitled; that the defendants pretended only to buy shares for him; that they never did so and that the fraud and deceit consisted in the false representation that stocks had been purchased, when, in fact, none had been. Under the allegations of this complaint the plaintiff could not recover the possession of stocks. The ground upon which a receiver was applied for is that the defendants have stated that they actually bought the shares for the plaintiff, had them in their possession and threatened to sell them unless the plaintiff complied with certain demands. That state of facts does not enlarge in any way the scope of the plaintiff’s, action. No relief can- be afforded in this action respecting the stock. It stands and must stand simply as an action for damages. The order appointing a receiver must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Van Brunt, P. J„ Ingraham, Hatch and Laughlin, JJ.,. concurred. "Order reversed, with ten dollars costs and disbursements, andl motion denied, with ten dollars costs.