tate of the corporation and are made trustees of such estate for the benefit of the creditors and stockholders and possess generally all the powers and authority conferred by law upon the assignees of insolvent debtors. 2 R. S., 464, § 42; 469, §§ 67, 68; Code Civ. Pro., 1788.

Receivers appointed pendente lite are, however, mere temporary officers of the court, and do not possess the powers of a permanent receiver unless specially conferred upon them by order of the court. Code Civ. Pro., §§ 1788, 1789; Herring v. N. Y., L. E. & W. R. R. Co., 105 N. Y., 372, 375; 7 N. Y. State Rep., 517.

The court of chancery, however, possessed and exercised in, many cases the power to appoint receivers pendente lite of property which was the subject matter of litigation before the court. Such receivers possessed no legal powers. They were officers of the court merely and their functions were limited to the care and preservation of the property committed to their charge, and they possessed no authority except such as the orders of the court conferred. Pomeroy's Eq., vol. 3, §§ 1331-1336; Herring v. N. Y., L. E. & W. R. R. Co., supra; Keeney v. Home Ins. Co., 71 N. Y., This power of appointment of a receiver pendente lite was one incidental to the jurisdiction of the court. It did not depend upon statute and was not affected by the character of the parties before it, whether an individual or a corporation, or by the nature of the property. Trust Co. v. N. Y., W. S. & B. Ry. Co., 101 N. Y., 478. Its most common exercise was in foreclosure suits whenever, by reason of the insufficiency of the security, it became necessary to impound the rents and profits of the mortgaged property during the litigation in order that they might, after the decree and sale, be applied upon the debt for the security of the mortgagee, Hollenbeck v.-Donnell, 94 N. Y., 342; Jones on Mortgages, § 1516. This particular jurisdiction has been extended to and is frequently exercised upon the foreclosure of mortgages upon railroads, and receivers of such property are charged with the duty of the operation of the road pending the foreclosure suit, to the end that the value of the property, which necessarily depends largely upon the condition of its business and continued operation, may not be depreciated, and also to the end that its income may not be diverted to the payment and satisfaction of debts which are not liens upon the property.

While this class of receivers have many duties and powers peculiar to themselves, they are such only that flow from the nature and character of the property committed to their charge, and in their legal character and relation to the mortgagor they differ in no respect from the receiver of rents and profits of mortgaged property appointed in actions to foreclose mortgages against individuals.

They do not represent the corporation in its individual or personal character, nor supersede it in the exercise of its corporate powers except so far as the mortgaged property is concerned. The corporation is not dissolved by the order appointing the receiver, Kincaid v. Dwinelle, 59 N. Y., 553;. Pringle v. Woolworth,

90 id., 502, and it is clear that in an ordinary foreclosure suit no attack is made upon its corporate existence, and hence no judg ment that can be entered in the action will affect its corporate life.

In every respect except the possession and management of the mortgaged property, the corporation is free and unfettered to exercise its franchise. Beach on Receivers, § 335. Accordingly it has been held that after the appointment of a receiver and the sale of mortgaged property it was competent and lawful for stockholders to elect directors. State v. Merchant, 37 Ohio, 251. That in an action under a statute against a corporation to recover for building a fence it was not a defense that at the time of doing the work the railroad was in the possession of a receiver appointed by a federal court in a foreclosure suit. O. & M. R. R. Co. v. Russell, 115 Ill., 52. That the fact that a railroad was in the possession of a receiver was no defense to the settlement of an account for taxes against the corporation. P. & R. R. R. Co. v. Commonwealth, 104 Pa., 80.

In U. S. Trust Co. v. N. Y., W. S. & B. Ry. Co., 101 N. Y., 478, the distinction between statutory receivers of corporations and receivers of mortgaged property was fully discussed, and it was held that § 2 of chap. 378, Laws of 1883, had no application to

the latter class.

In Pringle v. Woolworth, 90 N. Y., 502, it was held that the plaintiff was not debarred from maintaining an action against an insurance company by the appointment of a receiver.

The question under discussion was substantially decided in Arnold v. The Suffolk Bank, 27 Barb., 424, and it was there held in accord with the view here stated that a receiver of a bank could not be joined as a defendant in an action against the bank on a money demand. In that case, as here, the cause of action arose before the receiver's appointment, and it was said by the court "that the mere fact that A. is the receiver of B., whether they be natural or artificial persons, will not justify a creditor of B. in bringing A. as a party into every suit against B., when the rights and remedies of the plaintiff end with B." A similar ruling was made in Fleischauer v. Dittenhoefer, 49 Superior Court, 311. The respondent has cited but two cases to sustain the judgment. Pickersgill v. Meyers, 99 Pa., 602; Combs v. Smith, 78 Mo., 32.

In the Pennsylvania case the corporation was dissolved and the receiver appointed after dissolution. In the Missouri case while the facts in reference to the appointment of a receiver are not stated, enough appears in the opinion of the court to indicate that the defendant was a statutory receiver. In that view, the case is in harmony with the general current of authorities, but if the facts were otherwise it would not have our approval.

The defendant in this case was appointed by the circuit court in pursuance of its powers as a court of chancery. His functions were confined to the care and preservation of the mortgaged property, and his appointment gave him temporary management of the railroad under direction of the court; nothing more. The mortgage covered all the railroad property, real and personal, and

hence all property of the corporation was placed in his possession. He was authorized to operate the road, protect his title and possession, to defend all suits brought against him or the railroad company, to intervene in any suits or proceedings then pending, and was invested with the authority and powers usually conferred upon receivers in like cases according to the course and practice of the courts of the United States sitting in equity. By the same order the corporation was enjoined from interfering with said. receiver in the possession and management of the railroad property. He did not represent the corporation or supersede it in the exercise of its powers except in relation to the possession and management of the property committed to his charge.

Notwithstanding his appointment, the corporation was clothed with its franchises and still existed. It could still exercise its power so it did not interfere with the management of the railroad. It could do many corporate acts and it could do all things necessary to preserve its legal existence. It could sue and be sued and was liable for its acts and upon its contracts and covenants the same as if the receiver had not been appointed.

With the particular cause of action set out in the complaint the defendant had no connection, and it could in no possible way be charged upon the property in the receiver's possession. Met. Trust Co. v. Tonawanda R. R. Co., 103 N. Y., 245; 2 N. Y. State Rep., 69: Raht v. Attrill, 106 N. Y., 423; 11 N. Y. State Rep., 9. For it the corporation was alone liable and there was no legal obstacle to an action against it and a judgment, if recovered, was collectible out of its available assets.

It follows from these views that the defendant was not a proper party to the suit, and that the action was not maintainable against him.

The judgment should be reversed.

All concur, except HAIGHT, J., not voting.

LEMUEL COFFIN et al., App'lts, v. WILLIAM H. HOLLISTER, JR., Resp't.'

(Court of Appeals, Second Division, Filed February 24, 1891.)

APPEAL-FINDINGS OF FACT.

Where the finding of a court or referee depends upon the cre libility of witnesses, the facts found by the trial court and approved by the general term are final and unchangeable for the purpose of an appeal to this court. APPEAL from a judgment of the general term of the supreme court, in the third judicial department, affirming a judgment in favor of the defendant, entered upon the report of a referee.

Action of replevin to recover the possession of fifteen cases of muslin that had been sold by the plaintiffs to the firm of Toles & Pettit, manufacturers of shirts in the city of Troy. On the 3d of January, 1882, said firm made a general assignment of all their property, including said muslins, to the defendant for the benefit of creditors.

R. A. Parmenter, for app'lts; N. Davenport, for resp't. 1 Affirming 27 N. Y. State Rep., 637.

VANN, J.-On the 31st of October, 1881, the plaintiffs sold the goods in question to the assignors of the defendant upon a credit of sixty days from December 1, 1881, and on the 17th of January, 1882, they commenced this action to replevy the same, upon the ground that they had been induced to sell and deliver their property by reason of certain false and fraudulent representations made by the purchasers. The burden of proof was upon the plaintiffs to establish that the alleged false representations were made by the vendees with intent to deceive and defraud. Nichols v. Pinner, 18 N. Y., 295, 299; Arthur v. Griswold, 55 id., 400, 410; Morris v. Talcott, 96 id., 100; Macullar v. McKinley, 99 id., 353, 358; Brackett v. Griswold, 112 id., 454, 467; 21 N. Y. State Rep., 791.

The learned referee before whom the action was tried found that certain material representations were made, but he did not find that they were made with intent to defraud, and he refused to find that they were false. On the other hand, he found that the defendant, as assignee, was the actual owner of the goods when this action was commenced, and that no facts ever existed that authorized the plaintiffs to rescind the sale or to have the same declared fraudulent and void. These findings have been expressly approved by the general term, which states in its opinion that the referee's report is justified by the evidence. The only ground upon which we are asked to reverse the judgment appealed from is that the referee erred in passing upon the facts.

We are unable, however, to review his conclusions in this regard, because the questions of fact rest upon a conflict of evidence and are thus protected from interference by us, even if we were of the opinion that they should have been otherwise determined. Healy v. Clark, 120 N. Y., 642; 30 N. Y. State Rep., 897; Code Civ. Pro., §§ 992, 993 and 1337. When the result depends, as it did in this case, upon the credibility of witnesses, the facts found by the trial court and approved by the general term are final and unchangeable for the purpose of an appeal to this court. This is often said, but oftener disregarded, and the result is many fruitless appeals.

The judgment must be affirmed, with costs.

All concur.

SAMUEL TUCKER, Adm'r, Resp't, v. THE NEW YORK CENTRAL & HUDSON RIVER R. R. Co., App'lt.'

(Court of Appeals, Second Division, Filed February 24, 1891.)

1. NEGLIGENCE-CONTRIBUTORY.

Plaintiff's intestate, a boy twelve years old, arrived at defendant's crossing with his brother, who passed over in safety. Deceased rested a bag on the bumper of a car standing eleven feet from the track on which a locomotive was approaching, and still having six tracks to cross, and after turning his face in the direction of its approach, passed on and was struck by the tender. Held, that the fact that his face was turned in the direction from whence the locomotive came would not justify a jury in finding that he did look and observe that measure of care and caution which the situation imposed.

'Reversing 33 N. Y. State Rep., 863.

2. SAME-CARE REQUIRED OF BOY OF TWELVE YEARS.

In the absence of evidence tending to show that an injured infant twelve years old was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track which an adult would, he must be deemed sui juris.

(BRADLEY and VANN, JJ., dissent.)

APPEAL from a judgment of the general term of the superior court of Buffalo, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury.

The plaintiff's intestate, a boy twelve years of age, while crossing Smith street in the city of Buffalo on the 27th day of December, 1885, was run over by defendant's locomotive and killed.

It appears that plaintiff's intestate and his brother were passing southerly down Smith street, which was crossed between Oneida and Bristol streets by four railroad tracks belonging to the defendant corporation, by three tracks of the West Shore railroad and two tracks of the Lake Shore & Michigan Southern railroad. They were on the westerly walk of the street, and after passing over the West Shore tracks came to a switch track belonging to the defendant. The switch track on each side of Smith street had cars standing upon it, but a passageway was open on Smith street to enable teams and individuals to cross. The plaintiff's intestate was carrying upon his shoulder a bag partially filled. When he reached the center of the switch track he changed the bag from one shoulder to the other, resting it on the bumper of the car as he did so. While changing the bag he faced in the direction of the locomotive, which was then backing down at a high rate of speed. Had he looked he could have seen down the track on which this locomotive was coming a distance of 186 feet. From that point to the center of the track where he was struck and killed was a distance of fourteen feet. To the north rail of the track it was eleven feet, and between the southerly rail of the switch track and such north rail it was eight feet and five inches. After changing the bag he started on, his brother being then about fifty feet ahead of him. After taking one step there was an unobstructed view down the track on which the locomotive was coming for two streets, and before reaching the north rail it. was possible to see along it for the distance of nearly a mile. When he had reached about the center of the track he was struck and killed. The plaintiff introduced evidence tending to show that the flagman in charge of this crossing was not out when the plaintiff's intestate passed and that the bell was not rung or the whistle of the engine blown until the moment when the accident occurred, but as the question of contributory negligence is alone considered in the opinion, further facts as to that branch of the case need not be given.

James Fraser Gluck, for app'lt; Henry W. Hill, for resp't.

PARKER, J.-Whether the complaint should have been dismissed after the evidence was all in on the ground that the negligence of the plaintiff's intestate contributed to the accident presents the only question which we shall discuss on this review. N. Y. STATE REP., VOL. XXXVI.

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