Opinion
March 31, 1952.
Plaintiff, temporary receiver of Sanford Hotel Corp., appointed pursuant to the provisions of section 162 of the General Corporation Law, seeks to recover legal fees paid to respondent by said corporation for services rendered in a prior action in which the corporation and certain individuals were defendants and were represented by respondent, the complaint alleging that the corporation was only a nominal defendant in that action and that the obligation to pay respondent's fees was that of the individual defendants therein, for whose benefit the services were rendered. The order appointing the temporary receiver provided that he should have power "to collect and receive the debts, demands and other property" of the corporation and "to maintain any necessary action or special proceeding". The complaint has been dismissed on respondent's motion under rules 106 and 107 of the Rules of Civil Practice, and the appeal is from the order entered thereon. Order affirmed, with $10 costs and disbursements. A temporary receiver is merely a custodian and agent of the court, whose functions are limited to the care and preservation of the property committed to his charge and who does not supersede the corporation in the exercise of its corporate powers except as to the particular property confided to him, with title to its property remaining in the corporation. ( Decker v. Gardner, 124 N.Y. 334, 338-339; Sigua Iron Co. v. Brown, 171 N.Y. 488, 494.) He may not bring an action except by permission of the court appointing him or specific statutory authority. ( Foster v. Townshend, 68 N.Y. 203, 206; General Corporation Law, § 162; cf. Rockwell v. Merwin, 45 N.Y. 166.) Assuming the truth of the allegations of the complaint we are of the opinion that title to the moneys paid by the corporation to respondent was transferred to respondent, and that such moneys were not assets of the corporation and did not constitute a debt, demand or other property of the corporation for which an action could be instituted by the temporary receiver. ( Quintal v. Kellner, 264 N.Y. 32; Felter v. Maddock, 11 Misc. 297.) Plaintiff did not have legal capacity to sue and the complaint, therefore, was properly dismissed. Nolan, P.J., Carswell, Johnston, Adel and Schmidt, JJ., concur.