The plaintiff recovered judgment against defendant upon a trial before the court and a jury. The defendant is an attorney-at-law, and the action was for a conversion of money collected by defendant for plaintiff in another action. This action was commenced on April 14, 1898, and tried on May 18th. Subsequent to the transaction in which defendant collected the money in question, and before the commencement of this action, plaintiff became insolvent, and this money, so collected by defendant for plaintiff, was discovered in supplementary proceedings. The court thereupon appointed a receiver of the property of the plaintiff herein, and restrained the said plaintiff and all persons, except the receiver, from interfering with said money. The order appointing the receiver was filed and recorded on February 15, 1898, and the receiver duly qualified.
At the opening of the trial herein, the defendant’s attorney stated to the court that the defendant had been served with an order appointing a receiver for the moneys claimed in the action, and that the order enjoined both plaintiff and defendant from any interference with or transfer of the money; and said attorney added, “ I submit this certified copy of the order to the court.” He then *497moved, that, for that reason, the case be dismissed. The court denied the motion, and directed the trial to proceed, saying, “ I£ judgment is rendered against you (defendant), you can turn the money over to the receiver.” We think this ruling was error. The order appointing a receiver, though annexed to the return, does not seem to have been marked in evidence. It was, however, treated by the court as properly in evidence, its effect was commented, upon by the learned justice, and we must regard it as a part of the record that we are reviewing.
It, therefore, clearly appears that the plaintiff was not the real party in interest, and was without power to prosecute the action.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Beekman, P. J., and Giegebich, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.