The principal question in this case was disposed of upon the former appeal to this court,* leaving only such additional points as arose upon the last trial.
The point made that the execution was irregularly issued and a nullity, has, we think, no foundation. It rests upon the idea that the receiver, being an officer of the court and in the legal possession of the property, his possession was that of the court, and it was a contempt of the court to issue the execution without leave, and therefore it was void. *Page 392
Without considering the question whether a receiver who has thrust himself into a litigation should be exonerated from the effect of a judgment obtained against him, it is a sufficient answer to this objection to say that if the execution had been improperly issued, it could only be vacated by a motion made for that purpose upon papers served, which, if need be, might be controverted by the opposite party. Without such papers and proper notice of motion, the court upon the trial was not bound to grant the request of the defendant's counsel to set aside the execution and return as irregular, and there was no error in the ruling in this respect.
There is no force in the objection urged that the effect of the stipulation was to estop the plaintiff. The stipulation established the fact of possession and was to the effect that it should be admitted on the trial that the property was in the possession of the defendants when the action was commenced, and nothing more. It was merely for the purposes of the suit, and it does not establish possession in the defendants in the replevin action at any future time, or at the termination of this action, or operate as an estoppel. It is no answer that the property cannot now be reached, and it is not the fault of the plaintiff that it has been placed in a position beyond his control. The undertaking can only be satisfied by a re-delivery of the property or by payment of the judgment. And unless this is done, the defendants are liable.
The judgment was right, and should be affirmed.
All concur, DANFORTH, J., not voting.
Judgment affirmed.
* 69 N.Y., 412. *Page 393