(dissenting). The statute which controls this appeal (Civ. Prac. Act, § 126) constitutes an entire separate article (12), and reads as follows:
“ ARTICLE 12.
“ OATHS OF REFEREES AND OTHER OFFICERS.
“ § 126. Oath of referee and other officer. A referee, receiver, commissioner or appraiser appointed by a court or judge, before entering upon his duties, shall subscribe and take an oath, which, *609except as otherwise prescribed by statute or rule, shall be to the effect that he will faithfully, honestly and impartially discharge the trust committed to him. Where all the parties whose interest will be affected by the result are of full age and are present or are represented by attorneys, the oath may be waived, a record thereof being duly made.”
The requirement of an oath is the same for referees and receivers, and the same procedure for waiver is expressly provided. A receiver who fails to take an oath to the effect described or, in the alternative, to obtain, and make a record of, a waiver of the oath, has not satisfied the clear and unambiguous requirements of the act and must accept the consequences.
While the respondent’s characterization of the manceuvers which produced the result he seeks to avoid appears to be justified, I am unable to accept his view that other statutes make article 12 (Civ. Prac. Act, § 126) inapplicable, or to agree that the later extension of the receivership in the Supreme Court constitutes stare decisis.
As for the stipulation of the debtor to be responsible for the receiver’s fees and those of his attorney, that is not the waiver prescribed by the Civil Practice Act, for it does not mention the oath. The respondent supplies no answer by saying, as counsel said to us upon the argument, that very few receivers, in fact, obey the mandate of the section.
The defect seems to be jurisdictional. It is not possible for me to escape the conclusion that for the reasons stated the court below erred in awarding the receiver and his attorney allowances and fees.
The order should be reversed and the motion to discharge the receiver without conditions granted.