The plaintiff seeks recovery of the defendant upon a bond, conditioned for the faithful performance of duty by a receiver appointed in certain foreclosure proceedings in this court, and upon its undertaking to pay costs and damages awarded against the receiver in his appeal from an order of the Appellate Division, reversing a former order of this court, directing the receiver to pay over the rente from the property to the plaintiff in foreclosure, and directing the receiver forthwith to pay to the plaintiff herein the sum for which he sues in his first cause of action. The receiver failing tó comply with the order of the Appellate Division, in force and unmodified, the trial court was left with nothing to do but direct a verdict in favor of this plaintiff. At the time of the settlement of its order, the Appellate Division, being apprised of the fact of the depletion of the funds, announced: “ We have no right to consider the affidavit, submitted on behalf of the receiver, and which, in this instance, was presented without notice to the other side, tending to show that the receiver has not *772sufficient funds now in hand with which to pay Lesster’s claim ”, and that “ the receiver must seek his relief by a proper motion ”.
As to the second cause of action, it appears that the plaintiff, in foreclosure, appealed from the same orders as did the receiver, even a month in advance of the latter, each appealing by separate notices, undertakings, returns, and notices of ’ argument; that the appeals were never consolidated, but were argued together for the sake of convenience and were dismissed with costs, clearly leaving the plaintiff entitled to costs from each of said appellants.
The judgment must, therefore, be affirmed, with leave, however, to apply to the Appellate Division.
Freedman, P. J., and Leventritt, J., concur.
Judgment affirmed, with costs, with leave to appeal to Appellate Division.