(dissenting):
The Ogdensburgh and Lake Champlain Railroad Company is a corporation under the laws .of New York. The Yermont and Canada Railroad Company is a corporation under the laws of Yermont. The Yermont Central Railroad Company was a corporation under the same laws, but prior to the time of the alleged cause of action the defendant and others, by the Court of Chancery of Yermont, had been appointed receivers and managers of said Yermont railroad company, to hold and operate the same as officers of the court and not otherwise.
Prior to the time of the alleged cause of action the Ogdensburgh and Lake Champlain Railroad Company, as parties of the first part, and the Yermont and Canada Railroad Company and the managers and trustees of the Yermont Central Railroad Company, as parties of the second part, entered into a written contract. The Yermont Central Railroad Company was not itself a party to this contract; but the same was signed by the defendant and another, styling themselves trustees and managers; and they are described therein as having the possession and management of the Yermont Central Railroad Company under the decrees of the courts and the laws of the State of Yermont. The defendant describes himself in this contract not as a receiver but as trustee and manager.
By this contract the parties of the second part are to have possession and control and use of the Ogdensburgh and Lake Champlain Railroad Company. All the gross receipts are to belong to them and to be collected by said managers, and to be disposed of as the parties of the second part shall direct. The parties of the second part jointly and severally covenant to keep up and maintain in good order all the present equipment, and to keep in repair the tools and machinery. ■ They jointly and severally covenant to pay the party of the first part a certain rent; to assume all the obligations of the parties of the first part, by statute or common law, as common carriers or otherwise; to indemnify and save them harmless by reason *559of any claim that may be made for any neglect, accident or default happening upon, or in connection with, the road of the parties of the first part.
Now, in the first place, it seems to me that the defendant cannot be called an agent of the Yermont Central Railroad Company. He does not name himself receiver in the written contract; but I assume, from the stipulated evidence, that he may have been appointed receiver of the Yermont Central Railroad Company by a Yermont court. As such receiver he is not, as I think, the agent of the corporation. The corporation cannot control or remove him. He is simply an officer of the court. The ground of the appointment of a receiver is that the corporation shall no longer be permitted to manage the property, and that the court will take control of it.
As is said in Cardot v. Barney (63 N. Y., 281), “ the property was in the court for management and administration, and the defendant was an officer of the court obeying its orders and carrying out its directions.” And, in that case, it was because the position of the defendant therein was entirely official that he was held not to be liable in an action for negligence, in the management of a railroad which was under his control, as receiver, wheré no personal neglect was imputed.
But again — and here lies the distinction between the present case and that cited above — the defendant is not receiver of the Ogdensburgh and Labe Champlain Railroad Company, in the management of which this accident occurred. He has no official position what • ever, in respect to that railroad. The gross receipts, by the terms of the contract, belong to him and his co-lessees ; and are to be disposed of as they shall direct. It is very possible, that in this receipt of income and in this management of the Ogdensburgh and Lake Champlain Railroad Company, he acts as trustee and in a representative capacity. But this is unimportant. (Rogers v. Wheeler, 43 N. Y., 598; Ferrin v. Myrick, 41 N. Y., 315; Cardot v. Barney, ut supra, at p. 288.) In doing this, he is in no sense a receiver or officer of the court, but he has voluntarily assumed to operate the road, and thus has assumed all consequent liabilities.
In regard to the duties imposed on one as receiver, the courts go so far in protecting its officers that he cannot be sued except by permission of the court. But where one who has been appointed *560by tbe courts of another State, a receiver of a railroad company in that State, comes into this State and obtains the control of another railroad, and one incorporated by our laws, and manages that, and receives its income; he is not entitled to the immunities of a receiver in respect to such road and its management.
Furthermore, by the very letter of this contract, he agreed (and the agreement was several, as well as joint), to assume all the obligations of the company and to indemnify the company against any neglect, accident or default, happening upon, or in connection with, the said road.
In Blumenthal v. Brainerd (38 Vt., 402), in regard to these same receivers, the court held, that if they were in fact common carriers, it was no defense to an action for a breach of duty or obligation, that they were managing the road as receivers. In Paige v. Smith, (99 Mass., 395), the same rule was adopted in Massachusetts as to these same receivers.
But whatever may be the defendant’s liability in respect to the management in Yermont, of the road of which he is supposed to be receiver ; when he comes into this State and obtains complete control of a railroad, not by virtue of his appointment as receiver, but by a contract, which he voluntarily made; when he takes possession of this railroad, and agrees to assume the duties of the company as a common carrier, and when he receives the earnings, to be disposed of as he directs, he is, as it seems to me, the owner and proprietor, during the time agreed upon, of the property, and the master of the persons employed by him in performing the duties thus assumed.
Concurring with my brother Boardman, on the question as to the defect of parties, I think that, for the reasons above stated, the judgment should be reversed and a new trial granted, costs to abide the event.
Judgment affirmed, with costs.