This action was brought by the plaintiff, as lessor, against the defendant Nichols, as lessee, to recover the possession of real property, upon the ground that the lease had been forfeited for violation of its conditions. The main question in the case was, whether the forfeiture incurred had been waived by plaintiff. Upon the trial, the court directed the jury to find a verdict for the defendants, to which ruling *72the plaintiff duly excepted. The jury, by direction of the court, found a verdict for the defendants, and the exception was ordered to be heard at general term, in the first instance, and judgment, was, - in the mean time, suspended. , The general term overruled the exception, and ordered judgment for the defendants upon the vei’dict. - After the entry of judgment in conformity with this decision, plaintiff perfected an appeal to the court of appeals. Defendants now move that the receiver appointed for the collection of the rents during the pendency of the action (37 How. Pr., 222), be discharged. Plaintiff insists that the motion comes too late, for the reason that the perfecting of the appeal has deprived this court of the power to grant it; but the authorities cited upon this point fail to establish the proposition.- Section 339 of the Code prescribes that the perfecting of the appeal shall stay all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein. The proceedings here referred to must be construed to mean such proceedings as may be instituted by the respondent for the purpose of enforcing the provisions of the judgment, especially as the same section, in express terms, preserves the power of - the court below to proceed upon any other matter included in the action, • and not affected by the judgment appealed from. The security on appeal only stays further proceedings in execution of the judgment, but confers no power upon the court below to undo anything already done upon thé judgment. Thus, in Howe v. Searing (6 Bosw., 684), it was held that the perfecting of the appeal suspended the rights of the respondent to institute proceedings for the punishment of the appellant for the violation of a perpetual injunction awarded by the judgment, during the pendency of the appeal from the judgment in the court of appeals, and that in the mean time the appellant could act at his peril. And in *73Rathbone v. Morris (9 Abb. Pr., 213), it was held, on a motion to supersede an execution issued, that the effect of the security on appeal, under section 339, was simply to stay all further proceedings, but that the court had not authority to vacate any proceeding already instituted, or release any right already acquired by the respondent, under the judgment. The case of Berry (26 Barb., 55), is to the same effect.
In the present case, the appointment of the receiver was a provisional remedy in the action, and auxiliary. It was made by the court in the exercise of its discretionary powers, not as a matter of strict right, but purely as a matter of favor to the plaintiff, and is entirely independent of the judgment from which plaintiff appealed, and which, so far as this court is concerned, is a final determination of the actual rights of the parties." Upon a comparison of the language of section 339 of the Code with that of section 86 of 2 Rev. Stat., 607, and a careful examination of the questions decided by the chancellor in Hart v. Mayor, &c. of Albany (3 Paige, 385). I entertain no doubt that tin's court, notwithstanding plaintiff’s appeal from the judgment, possesses the power to redress a wrong .which, as it now appears, has been done to the defendant by the allowance of a mere provisional measure not affecting the merits of the action.
According to the current of the authorities, the entry of the j udgment in favor of the defendants had the effect of ending the functions of the receiver, but the receiver is not discharged thereby. The court may, according to the exigencies of the case, upon good cause sho.wn, either continue or discharge him by a further order, upon an examination of the peculiar facts of this case. I have come to the conclusion that the receiver should be discharged. I hereby appoint James M. Smith, Esq., as referee, to pass the accounts of the receiver, and upon the confirmation of the *74referee’s report, the receiver will be required to pay over the funds, less all proper charges, to the clerk of this court, to be invested by said clerk in the New York Life Insurance & Trust Company, until the further order of this court.
Order to be settled on two days’ notice.