Opinion
March 30, 1937.
An action was brought in the Municipal Court of the City of New York, Borough of Brooklyn, to recover damages for personal injuries sustained as the result of defendant's negligence. The complaint alleged that defendant maintained in a negligent condition a coal hole opening in the sidewalk in front of premises of which he is receiver, and that plaintiff received injuries as the result of such negligent maintenance. The Municipal Court gave judgment for plaintiff. The appeal is from the Appellate Term's order of affirmance. Order of the Appellate Term affirmed, with costs. The language of the order appointing the receiver directed him to manage and operate the hotel. This language carries liability in a proper case. ( Kain v. Smith, 80 N.Y. 458; Cardot v. Barney, 63 N.Y. 281; Birch-Field v. Davenport Shore Club, Inc., 223 App. Div. 767.) Lazansky, P.J., Carswell and Taylor, JJ., concur; Hagarty and Johnston, JJ., dissent and vote to reverse the order of the Appellate Term and the judgment of the Municipal Court and to dismiss the complaint, being of opinion that the defendant is a receiver of rents and profits whose status may not be distinguished from the receivership considered in Woman's Hospital v. Loubern Realty Corp. ( 266 N.Y. 123).