Supreme Court, February, 1918. [Vol. 102. under the Federal Income Tax Law, the receiver has communicated with the treasury department and has, by a series of letters, set forth all of the facts, as the result of which the receiver has been officially informed that in the opinion of the department he "is required to file a return showing the net income received * and will be obliged to pay the tax shown to be due by such return." The receiver now petitions the court for instructions. The power to appoint a common-law receiver is a prerogative of a court of equity in aid of its jurisdiction, and by means of which the res is detained in custodia legis until in the orderly course. of procedure the rights of the parties can be determined. Until interlocutory decretal order or final decree the title and interest of the parties in the res remains as before suit brought. The only purpose of the receivership is to secure the property or thing in controversy so as to preserve it from loss or destruction or waste and that it may be subjected to such order or decree as the court may subsequently make. The receiver in such a case is to be distinguished from a statutory receiver whose title and functions are prescribed by the statute under which he is appointed. Boonville Nat. Bank v. Blakey, 107 Fed. Repr. 891, 894. The receiver in such a case as the present is a mere custodian and manager of the property under the direction of the court. He is not a trustee for creditors; he has no title; he has no powers save such as are conferred by the order of appointment. His possession is the possession of the court. He may pay out no money save as authorized by law or by the court which appointed him. The foregoing principles are elementary in every common-law jurisdiction, and they are recognized in this state as well as in the federal courts. Keeney v. Home Ins. Co., 71 N. Y. 396; Davis v. Grey, 83 U. S. 203, 217. The moneys com Misc.] Supreme Court, February, 1918. ing into the hands of the receiver are not the avails of trade, commerce, investments, employment, occupation or service. They are not in any sense "income" within the meaning of the statute - at least so far as the receiver is concerned. When the receiver shall have accounted and the moneys remaining in his hands shall have been paid to the parties entitled thereto, doubtless these moneys will be taken into consideration by the recipients when making their tax returns. In answer, therefore, to the petition of the receiver, he is instructed that he is under no duty to make any return to the treasury department of the moneys received by him and that he is not liable for any federal income tax upon such moneys. But to avoid any unnecessary controversy, and that respectful attention may be given to the communication of the treasury department, the court suggests that the receiver communicate further with the department, calling attention to these instructions. Ordered accordingly. MAURICE BRILL and SAMUEL BRILL, Plaintiffs, v. MARIA R. FRIEDHOFF and ANNA M. WUEHRMANN, as Surviving Executors under the Last Will and Testament of JOHN PETER FRIEDHOFF, Deceased, Defendants. (Supreme Court, New York Trial Term, February, 1918.) Lease-tenant's rights under- landlord and tenant contracts surety executors and administrators. Where after the death of the guarantor on a lease his widow as an individual, though she was one of the executors of his estate, became vested to the title to the tenant's right under the lease, such act not being necessary to conserve her testator's estate, and thereafter by an agreement with the landlords reciting that she had become the owner and holder of the Supreme Court, February, 1918. [Vol. 102. assumes the lease "and is now in possession of the premises ACTION upon a written lease. Feiner & Maass (Ira Skutch, of counsel), for plaintiffs. William Bondy, for defendants. NEWBURGER, J. The complaint alleges that on the 30th day of October, 1907, the plaintiffs entered into an agreement in writing with one Henry C. Meyer whereby they leased to said Meyer the premises No. 51 Cortlandt street, this city, for the term of twelve years from the 1st day of October, 1907, at the yearly rent of $9,000, to be paid in monthly installments of $750 on the first day of each month until the 1st day of May, 1909, and for the balance of the term at the yearly rent of $11,500, payable monthly, and that the said Meyer should pay all taxes and assessments levied on said premises; that one John Peter Friedhoff, in consideration of the making of the lease by plaintiffs. to Meyer, and of one dollar paid, expressly covenanted and agreed that the said Meyer should observe and fulfill the terms, covenants and conditions of said lease, and that the said John P. Friedhoff should be liable to plaintiffs on account of or by reason of any damage, loss or injury that should be sustained by the said plaintiffs by the breach or failure of the said Meyer to Misc.] Supreme Court, February, 1918. perform any of the covenants, conditions or reservations in said lease, and that said covenants should be binding on the parties and their legal representatives and assigns; that the said John P. Friedhoff died on the 29th day of July, 1910, and that the defendants were appointed and qualified as executors of the estate; that Meyer transferred the said lease and title therein was vested in the defendant Maria R. Friedhoff about the 11th day of February, 1915; that on the 17th day of April, 1915, the plaintiffs, as landlord, and the said Maria R. Friedhoff, as tenant, entered into an agreement whereby the plaintiffs waived the payment of all taxes after the 2d day of May, 1915, as part of the rent, and the said Maria R. Friedhoff assumed the payment of the rent reserved under said lease, except as modified; that said modification and assumption of the lease by said Maria R. Friedhoff, tenant, was consented to by the defendants, and the defendants covenanted and guaranteed the payment of the rent and all other sums to be paid by the tenant; that the said Meyer and the said Maria R. Friedhoff have failed to pay the rentals for May, June, July, August, September and October, 1916, and the water taxes for the period from August 13, 1914, to March 3, 1916. The answer admits all the allegations of the complaint, but sets up that before the rent sued for became due there was a surrender and acceptance of the premises; that the plaintiffs accepted the said Maria R. Friedhoff as sole tenant and released Meyer, and that the defendants had no authority to agree to pay the rent or guarantee the performance of the lease by the said. Maria R. Friedhoff. On the trial the facts alleged in the pleadings were undisputed. The agreement between plaintiffs and Maria R. Friedhoff, after referring to the lease from the plaintiffs to Meyer, recites that the said Maria R. Friedhoff has become Supreme Court, February, 1918. [Vol. 102. the owner and holder of the lease, and is now in possession of the premises, and releasing the said Maria R. Friedhoff, as tenant, from the payment of all land taxes assessed after May 2, 1915. This agreement is signed by the said Maria R. Friedhoff, individually, and appears to have been executed and acknowledged on the 17th day of April, 1915. On the 29th day of May, 1915, Maria R. Friedhoff made an affidavit, in which she states that she is the sole owner of the lease made to Meyer by plaintiffs, and that the affidavit was made to induce plaintiffs to deal with her as the sole owner of the lease and tenant in possession. The affidavit further states that Meyer assigned the lease to the defendants herein on the 17th day of December, 1912, and it was assigned by the defendants to the Hub Café Corporation on November 30, 1914, and assigned by the said Hub Café Corporation to the Cortland Café Corporation December 18, 1914, and then assigned to the defendant Maria R. Friedhoff, February 11, 1915. On the same day the defendants Maria R. Friedhoff and Anna M. Wuehrmann, as trustees and executors under the last will of John P. Friedhoff, in writing, consented to the modification of the lease to Meyer, and agreed, as executors and trustees, to perform the covenants of the lease with the modification, and guarantee the payment of the rent and other sums reserved in said lease without notice, and then further provides that nothing herein contained shall be construed as creating any personal liability of these defendants. The agreement signed by the defendants as executors and trustees, although dated May 29, 1915, was delivered, as testified to, simultaneously with the agreement of modification. The rent unpaid, and for which this action is brought, is for a period subsequent to these agreements and during the tenancy of the defendant Maria R. Friedhoff. Plaintiffs brought an |