SINEY a. THE NEW YORK CONSOLIDATED STAGE COMPANY

SINEY a. THE NEW YORK CONSOLIDATED STAGE COMPANY. Supreme Court, First District; General Term, Feb., 1865. Receives.—Changing Appointment. The court may at" any time before the appointment of a receiver, which they have directed, is consummated, revoke such appointment and appoint another. An order making such revocation and new appointment is discretionary and not appealable. Appeal from an order changing the receiver. This action was brought by John Siney for substantially the same causes as the action brought by Smith and Kerr against the same defendants, in the New York Common Pleas, the proceedings in which are reported Ante, 419. This suit was commenced on the 24th day of December, and on the same day Mr. Schell was by consent of parties appointed receiver, the court directing, however, that the plaintiffs in the Smith and Kerr suits should be heard before Mr. Schell entered upon the execution of his duties. After hearing the counsel for Smith and Kerr, the order appointing a receiver was, on the 6th of January, modified by substituting Mr. Murphy in the place of Mr. Schell. From the order thus modifying the previous order, the plaintiffs appealed. C. A. Rapallo and W. F. Allen, for the appellant. I. The only parties to this appeal or entitled to be heard are the original parties to the action. If other individuals have interests to protect they should first be made parties upon petition, or bring an independent action to protect their interests. (De Ruyter a. Trustees of St. Peter’s Church, 3 Barb. Ch., 119; Martin a. Kanouse, 2 Abbotts’ Pr., 390 ; Beach a. Gregory, Ib., 203.) II. It was error to allow persons not parties to the action, mere strangers, to be heard on the selection of a receiver in the action.' A receiver is an officer, of the court, indifferent between the parties to the action to protect the property pending the litigation. As strangers cannot in the action acquire or have any rights in or to the property under the judgment, the receiver cannot and does not represent them. A stranger to the action cannot be heard as to the temporary custody of the property any more than he can on the final disposal of it. (Howell a. Ripley, 10 Paige, 43; Ellis a. Evans, 5 Denio, 640; S. C., 11 Paige, 467.) III. It was error to make the change without notice to all the parties, plaintiff as well as defendant. It was error to make the change against the wishes of all the parties to the action who alone were entitled to be heard. It was without precedent if not erroneous, to remove a receiver upon whom all the parties had agreed,- and appoint another in his stead. _ Ordinarily a receiver is appointed only on the nomination of a party. It is only in extreme cases even when the parties do not agree that a receiver will be suggested or named by the court, if the same rule prevails as formerly prevailed in the master’s office. The reasons for it remain. (Attorney-general a. Day, 2 Mad. Ch., 246; 1 Smiths Ch. Pr., 488; Nelson a. Poe, 1 Hogan, 322.) A. R. lawrenee, Jr., and H. W. Sobimson, for the respodents. I. The action of Judge Barnard in substituting John Murphy as receiver instead of the defendant, Augustus Schell, is not appealable. The action was brought by one cestui que trust on behalf of himself and all other stockholders, or as a director of the Consolidated Stage Company, under 2 Eev. Stat., 462, § 33, subd. 7, § 35. Before the defendant, Schell, had given any bond or entered on his duties as receiver, the judge became convinced of the impropriety of the appointment, and exercising the same discretion under which he made the selection, he reconsidered his action and appointed a third person in no way connected with the suit. _ His power to make the substitution cannot be questioned. His discretion • in exercising it cannot be reviewed on appeal. It affected no right of the plaintiff and did not involve the merits. No attempt has been made to have it set aside for any irregularity or petition for a review. (Re. Eagle Iron Works, 8 Paige, 385.) The interference of Smith and Kerr, whose rights were interfered with, was necessary. (Howard a. Ripley, 10 Ib., 43.) II. There can be no question but that plaintiff’s entire proceeding was an attempt to forestall the action of the Common’ Pleas and oust it of its jurisdiction, and to collusively continue the defendant, Schell, in the management and control of the property. (Conover a. The Mayor, &c., of N. Y., 5 Abbotts’ Pr., 393.) [MAJORITY — By the Court.—Clerke, J.] By the Court.—Clerke, J. It is not necessary to consider whether Kerr and Smith have a right to be heard on this- appeal. Both the plaintiff and defendants, being alike dissatisfied with the order of the special term, have appealed. They bring the matter to the cognizance of the general term, and, if it is appealable at all, the court has entire control of the matter on appeal. But this is not an appealable order. Before the person who was, in the first instance, appointed receiver, entered on his duties, and, indeed, before the appointment was consummated by the filing of the requisite bond, the judge, in the exercise of the same discretion which induced him to make the first nomination, reconsidered his action, revoked that nomination and substituted another person. It is of no consequence how or where he received any information which induced him to make the substitution. We think he exercised a discretion which cannot be controlled by us. The appeal should be dismissed. Ingraham, P. J., and Sutherland, J., concurred.