[After stating the facts as above].—The complaint alleged that the entire stock of goods, materials, fixtures and assets of the copartnership were fraudulently made oyer to these appellants by William Hopfensack. When, therefore, the court appointed a receiver of all the property and assets of the copartnership and directed him to take possession thereof, the property so alleged to be fraudulently conveyed was intended, and no other. That the property he actually took into his possession was the property so conveyed by William Hopfensack is found by the referee in his report of February *45918, 1880. The subject of the receivership was the disputed assets held by these appellants under a claim- of title from an alleged fraudulent vendor. It was to preserve this property until it was determined in the action to whom it belonged that the court by its receiver took it into its own custody. Whichever party prevailed, the property or fund pays for its preservation or protection.
The appellants do not stand in the position of third parties whose property has been wrongfully seized by a receiver. In such case they would be entitled to have it restored without any charges whatever, and to be indemnified. Nor do they stand in the "position of parties from whom a receiver has taken not only property which is the subject of the receivership, but also property which is not in dispute in the action. In such case the property last described would be restored to them, as matter of course.
But appellants were defendants charged with having property belonging to the copartnership of Hopfensack & Co., to which they got no title because of the fraudulent character of the transfer to them. The court took the disputed property into its custody to abide the determination of the action, and as there is no other fund from which the receiver’s legal fees and expenses are payable, he is entitled to them out of the fund in his hands, i. e., the property in dispute, no matter to which of the parties to the action possession of such property has been adjudged.
Appellants claim that as the judgment determines that they are entitled to the property and were the owners thereof when the action was brought, they should have it free of all the receiver’s charges. But no authority in support of the proposition has been cited. The rule is that receivers are entitled to their costs out of the estate as a matter of course (2 Barb. Ch. Pr. 328). They are entitled to have paid out of the fund, although it belongs to incumbrancers, the costs of an adverse application made by a party to the cause against the receiver (Conrad v. Hanover, 9 Beav. 3; Att.-Gen. v. Lewis, 8 Beav. 179).
As this point is the only one relied upon on this appeal, and *460no question is made of the amount allowed to the receiver, nor of the facts as found by the referee and above referred to, the order must be affirmed.
Charles P. Dalt, Ch. J., and Larremore, J., concurred.
Order affirmed, with costs.