Voigt v. Schenck ( 1889 )

Learned, P. J.:

The order appealed from was made after judgment. It inserted the name of Thomas A. Murray, as receiver, as a party to the action, defendant, in the summons and complaint, Us pendens, judgment, notice of sale, and all papers and proceedings, nu/ne pro tunc, as of the date of the several papers.

The very object of a Us pendens might be destroyed if the name of a defendant could be inserted numc pro tunic. If a new party is brought in a new Us pendens should be filed. The effect of this order would be to create a judgment against a man who had never been sued. This cannot be done. (N. Y. State Mon. Pan. Ass. v. Remington Agricultural Works, 89 N. Y., 22; 25 Hun, 475; Bassett v. Fish, 75 N. Y., 304.)

The defendant Murray, as receiver, had become the owner of the equity of redemption before the commencement of this action of foreclosure. His rights could not be barred by an order inserting his name in a judgment, entered on a summons and complaint to which he had not been a party and with which he had not been served. Furthermore, if he were to be brought in as a defendant a supplemental summons would have to be served on him. (Code, 8 453.) In no other way could he (except on his own application) be made a party. ¥e. do not think that the fact that Murray is a receiver deprives him of the right of defending an action lawfully brought against him. It is true that a receiver is an officer of the court. But even officers of the court are entitled to be sued by due process of law when sued at all.

The order appealed from must be reversed. But the plaintiff, if he chooses, may ajiply to the Special Term for leave to open the judgment and the sale, and to make Murray, as receiver, a party defendant, by serving a supplemental summons upon him. We cannot grant this order here, because we do not know what persons may be interested as purchasers at the sale, and who may, therefore, be entitled to notice.

No costs are allowed on this appeal.

Landon and Fish, JJ., concurred.

Order reversed, with leave to plaintiff to apply to Special Term to open judgment and to bring in defendant; no costs of appeal.