I concur in affirming the judgment, but do not concur in the opinion that there was not error in overruling the objection to the sufficiency of the evidence of the plaintiff’s appointment as receiver. The appointment was controverted by the defendant; and as the recording of the order of appointment was necessary to vest the receiver with the right of action against the defendant, it was incumbent on him to show such recording, not for the purpose of establishing his legal capacity to sue, but to show the transfer to him of the cause of action, inasmuch as the receiver is vested with the property and effects of the judgment debtor from the time of the filing and recording of. the order.
But as proof was furnished, on the argument of the appeal, of the due filing and recording of the order, the error at the trial is cured. Such proof was admissible (Bank of Charleston v. Emeric, 2 Sandf., 718).
The respondent should not have costs of the appeal.