Alexander v. Kelly

169 Misc. 521, 7 N.Y.S.2d 617, 1938 N.Y. Misc. LEXIS 2082

Opinion

Smith (Peter P.), J.

The Court of Appeals in Holmes v. Gravenhorst (263 N. Y. 148), relied upon herein by the defendant, has stated that, in the absence of a contrary agreemént entered into between the parties, there is no authority for holding that a mortgagor in possession may be evicted from the mortgaged premises prior to a sale under a judgment of foreclosure and sale. In the instant case, however, it was expressly stipulated under the provisions of the extension agreement that the owner would pay a reasonable rental for the premises in the event of default. The latter covenant clearly contemplates the exception to the general rule enunciated in the Holmes case. Plaintiffs’ motion for a receiver of the rents granted. The order will be settled on notice. Plaintiffs’ motion for summary judgment has been withdrawn.