Benjamin Wright, as Receiver, etc., Respondent, v. Mary A. Nostrand, Impleaded, etc., Appellant

Benjamin Wright, as Receiver, etc., Respondent, v. Mary A. Nostrand, Impleaded, etc., Appellant. (Reargument March 3, 1885; decided March 27, 1885.) In an action brought by a receiver, appointed in supplementary proceedings, to set aside as fraudulent a conveyance of real estate, executed by the judgment debtor, so as to subject the property to levy and sale on execution, where the receiver simply proves his appointment, without showing the proceedings necessary to vest in him title to the real estate, he is not entitled to recover the rents and profits. This action was brought by a receiver, appointed in supplementary proceedings, to set aside as fraudulent a conveyance of real estate, made by the judgment debtor. It is reported in 94 New York, 31. ’''Subsequently a motion for a reargument was made, on the ground, among others, that the judgment appealed from erroneously awarded to plaintiff the rents and profits of the premises. The remittitur was recalled and reargument ordered. Upon such reargument the following mem. was handed down: “As the record has again been returned to this court, and we are again in possession- of this case, we will now amend our former order so as to make it conform to what we would have actually ordered, but for an inadvertence. While there has been considerable delay, it has been mainly the fault of the courts and should not prejudice any party. “ When the case was first here, we decided that the plaintiff was not so appointed receiver and so vested with the title to the land that he could recover the rents and profits, and we held that the judgment rendered at the Special Term should not have been reversed at the General Term for any oy the technical errors of law alleged against it. There were no errors of law affecting the judgment, but the adjudication therein that the plaintiff was entitled to the rents and profits; and that portion of the judgment the General Term should have stricken out. As to that, or on that account, it should .not have granted a new trial, as it was a separate matter not affecting the rest of the judgment, and the plaintiff could not in any event recover the rents and profits. It should have affirmed the judgment with that portion stricken out. We will now do what it should have done, and to that end we will reverse the order of the General Term and strike out all that portion of the judgment which relates to the rents and profits, and affirm the judgment of the Special Term as thus modified. As neither party has wholly succeeded upon the appeals, as is usual in such cases, we will not award costs upon the appeals to either party as against the other; and our former order and the remittitur should be amended to conform to these views.” Edward P. Wilder for appellant. Henry JD. Betts for respondent. [MAJORITY — Per Curiam] Per Curiam mem. for amendment of former order as above. All concur. Ordered accordingly.