Baier v. Kelley

55 Misc. 368, 106 N.Y.S. 552

• Court: New York Supreme Court
• Decided: July 15, 1907
• Status: Published

Opinion

Dayton, J.

The papers fail to show that the property is inadequate to secure plaintiff’s mortgage. Indeed, I think the contrary is shown. The receivership clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver. See Thomas v. Davis, 90 App. Div. 1, where the court says: “ The general rule, as I understand it, is, when a mortgage contains such a provision, and it further appears, as here, that the mortgage sought to be foreclosed is a second mortgage, that the parties in possession refuse to pay the interest and taxes, are receiving the rents, and that there" is doubt as to whether the security is adequate, that a receiver will be appointed.”

Motion granted.