Gray v. Croquet. ground or foundation for the position assumed by the defendant that there was any claim of title adverse to that of the grantor at the time either of the two last mentioned deeds was delivered to the grantees, or that either of them was selling a "pretended right" to the premises. It follows that the plaintiff's deed entitled him to a recovery of the premises, unless the matters to which I shall hereafter refer are sufficient to defeat his claims to the possession thereof. It is found by the court below "that sometime in July, 1860, or 1861, said Nicholas Barlow made a verbal agreement with said Mary Barlow that the said property was to be considered as belonging to their child, Robert N. Barlow, and that said Nicholas L. Barlow was to act as trustee." That agreement does not constitute a defense. It was made long after Mrs. Barlow acquired the title, and being verbal, it did not create a valid trust; and assuming, as the defendant's counsel insists, that such a trust as was thereby intended might be proved by any writing subscribed by Mrs. Barlow declaring the same, it is sufficient to say that there is no finding by the referee of any such declaration, nor is there any evidence thereof in the case. The statement made by her in the complaint in the action by her against her husband for a limited divorce referred to in the findings, conceding it to have been subscribed and sworn to by her, was not declaratory of such a trust. On the contrary, it shows that she, on a request made to her by her husband, on or about July 22, 1861, to sign a power of attorney to convey the premises to their son, refused to do it. It therefore, so far as it may be considered as having reference to the the matter at all, instead of establishing tends to prove the non-existence of such a trust. Nor does the allegation in that statement that her husband, being unembarrassed in his pecuniary circumstances, purchased the property and caused it to be conveyed to her for the purpose of securing a home for her and himself, in case of future misfortune in business, prove any interest in him. It at most shows that the object in hav ing the title to it taken in the name of the wife was to pro Gray v. Croquet. tect it against the claims of future creditors, and proves a clear intention on his part to vest it absolutely in her as her separate estate, without any interest therein or right thereto on his part, evidently contemplating then that he and his wife would continue to live together, and consequently that the securing a home to her would secure one to himself. It was also claimed on the part of the defendant upon the trial that there had been a partial performance by Nicholas L. Barlow of the parol agreement, and that this fact constituted an equitable defense to the plaintiff's recovery. All that is found by the court below tending to show such performance by him, is that he has "claimed to hold and lease said premises under said verbal agreement, and on the first day of May, 1866, by a lease in writing and subscribed by him as such trustee, he leased and rented said premises to the defendant for the term of one year at the annual rent of $500." No benefit is shown to have resulted to Mrs. Barlow from any of these acts, nor that a refusal by her to carry out the agreement will operate as a fraud on the husband. He has no personal interest in the execution of the trust intended to be created thereby, and no consideration whatever passed at the time the agreement was made. There is, therefore, no sufficient ground for extending the benefit of the equities of the doctrine of part performance of an agreement to the defendant in this case. It is indeed doubtful whether that doctrine can be applied to a case of trust; see Rathbone v. Rathbone, 8 Barb., 106. The views above expressed lead us to the conclusion that none of the exceptions taken by the defendant on the trial or to the findings are well taken, and that the judgment of the city court is right, and should be affirmed. Judgment affirmed with costs. In an action prosecuted by a receiver to collect money to increase the fund in his hands, if the defendant prevails he is entitled to costs out of the fund, immediately. He is not required to accept a payment pro rata with the general creditors of the estate. An order denying a motion that a receiver pay costs to which a party defending an action prosecuted by such receiver has become entitled, is not discretionary in such sense that it cannot be reviewed in the court of appeals. Appeal from an order. This action was commenced in the supreme court in the first district by the Columbian Insurance Company, on January 9, 1866. On the 23rd of the same month, and before the defendant appeared, receivers of the plaintiff's property were appointed, and the action was thereafter prosecuted by the receivers and their successor, to trial. The action was an ordinary suit at law for the recovery of money only. On a trial before a referee, the defendants obtained a report upon which judgment was entered in their favor for their costs of suit. pos The defendants then applied at special term for an order that the receiver pay such costs out of funds in his hands; showing by affidavit that he had funds in his session as such receiver to a much larger amount. The nature of the receivership was not shown by the papers, nor did it appear to what extent there are claims of creditors or others to the funds in the hands of the receiver. Columbian Ins. Co. v. Stevens. This motion was denied at the special term, and the order denying it was affirmed at the general term. The defendants now appealed from the order of the general term to the court of appeals. Ira D. Warren, for the appellants.-I. Under sections 317 and 321 of the code of procedure, the receiver, who became the owner of the cause of action after the suit was brought, became liable for the defendants' costs, in the same manner as if the action had been commenced by him. The defendant was therefore entitled to an order directing him to pay them (Conger v. Hudson River R. R. Co., 7 Abb. Pr., 255; Colvard v. Oliver, 7 Wend., 497: Carnahan v. Pond, 15 Abb. Pr., 283; Camp v. Receivers of Niagara Bank, 2 Paige, 283; Jordan v. Sherwood, 10 Wend., 122; Giles v. Halbut, 12 N. Y. [2 Kern.], 32; Schoolcraft v. Lathrop, 5 Cow., 17). It seems clear that the receiver, being a "trustee of an express trust, expressly authorized by statute to sue," is bound to pay the defendants' costs out of the fund, unless the court direct him to pay them personally; and that the court is bound to order them paid out of the fund, as no misconduct is shown on the part of the receiver. II. The receiver became the owner of this cause of action three weeks after it was commenced, and continued to prosecute it until a final determination of the action in favor of the defendant. Can a receiver, with plenty of funds in his hands, incur an obligation in his capacity as receiver, and then refuse to pay it out of the funds in his hands? Will the court permit a suit to be prosecuted against a party for the benefit of the fund in the receiver's hands, and, when it results in a failure, refuse to charge that fund with costs? We submit that, on a proper case being presented (as there was here), the defendants are entitled to the order of the court directing its officer having custody of the funds to pay the costs, as a matter of strict legal right; and that, where the receiver seeks by a suit to increase the funds in his hands, and fails, that fund should be charged with the costs; and that section Columbian Ins. Co. v. Stevens. 317 of the code makes them chargeable on the fund expressly, unless the court order the receiver to pay them personally. III. The order is reviewable. 1. It was not discretionary. The receiver is an officer of the court; the fund of the plaintiff is, therefore, in the hands of the court. Can the court incur an obligation in the prosecution of a suit to increase the funds in its hands, and then, if it fails, say to its unfortunate victim, "It is discretionary with me whether I pay you or not, and I am discreet enough not to do it?" We submit this would be monstrous injustice and inequity, and that the supreme court has no such discretion; and that this court is the only court having the power to correct it. 2. This order is reviewable under subdivision 3 of section 11 of the code. It is a "summary application in an action after judgment," and it "affects a substantial right" (Bank of Geneva v. Reynolds, 33 N. Y., 160; People v. New York Central R. R. Co., 29 Id., 423). Thomas G. Shearman, for the respondents.-I. The appeal should be dismissed. The order of the general term is not reviewable in this court. 1. Assuming that the court below had a power to make the order for which the defendants applied, it was certainly a matter within its discretion. The defendants had recovered judgment, and could have issued execution in the ordinary way. This was all to which they were entitled as a matter of right. It is not in the regular course of judicial business to grant an order directing the payment of a judgment. It may be that leave might have been required to issue an execution, the assets being in the hands of receivers; but this was not the relief for which the defendants applied. They asked for an order of a peculiar character, not to remove obstacles to the exercise of their absolute rights under the judgment, but to obtain a species of relief which never was obtainable under an ordinary money judgment as a matter of course. Such relief can only be asked as a favor, not as a right. 2. The decision of the court below |