Brick v. Hornbeck

19 Misc. 218, 43 N.Y.S. 301

• Court: New York Supreme Court
• Decided: January 15, 1897
• Status: Published

Opinion

Gaynor, J.

That the mortgage contains a clause in so many words mortgaging the rents and profits, does not require the court to appoint a receiver in an action to foreclose the mortgage. It may nevertheless exercise its discretion. Unless the land is inadequate security, the appointment of a receiver is an unnecessary annoyance and hardship. Cases like Shotwell v. Smith, 3 Edw. Ch. 588, are not authorities to the contrary, but only that such a clause in a mortgage is ground for such appointment. In the foreclosure of .a chattel mortgage, the court is not compelled to appoint a receiver. In the case of a clause in a real estate mortgage for the appointment of a receiver upon default, the court is not obliged to comply with it. Degener v. Stiles,. 6 N. Y. Supp. 474. Parties may not by contract impose an obligation upon courts in such a respect. Extraordinary remedies are not resorted, to unless required in order to do full justice. It is .for the court in every instance to determine whether it should take upon itself such a trust, and whether it should do so in a case like this depends upon whether it is necessary for the security or protection of the mortgagee.

It not being shown that the land is inadequate, the court sees no reason why it should burden itself with the possession and care of the land, and denies the motion.

Motion denied.