Opinion
June 28, 1939.
Present — Sears, P.J., Crosby, Cunningham, Taylor and Dowling, JJ.
Order affirmed, with ten dollars costs and disbursements. Memorandum: We think the order made denying the motion to confirm the referee's report, appointing a receiver and authorizing him to bring suit against two parties did not, by omitting specifically to authorize the receiver to sue the appellant, adjudicate the validity of the payment to appellant and that order is not res adjudicata herein. The order was broad enough to authorize the receiver to bring this action. The order, in any event, was not binding on the receiver since he was not a party to the proceeding in which it was made. ( Pfeffer v. Kling, 58 App. Div. 179, 183; Shipman v. Rollins, 98 N.Y. 311, 330, 331.) The resolution directing payment to the appellant included payment for past services. Since there was no resolution or agreement authorizing payment for such services, the resolution to that extent at least was void. ( Lewis v. Matthews, 161 App. Div. 107; Kreitner v. Burgweger, 174 id. 48.) Under all the circumstances we think the complaint states a cause of action and that the motions were well decided. All concur. (The order denies defendant's motion to vacate a previous order permitting the bringing of the action, and denies a motion to dismiss the complaint.)