Carlin Trading Corp. v. Bennett

24 A.D.2d 91, 264 N.Y.S.2d 43, 1965 N.Y. App. Div. LEXIS 3070

Opinions

Per Curiam.

Defendant is the owner and mortgagor of a dwelling in which she resides. The action is to foreclose the mortgage. In the course of the action a receiver was appointed who applied to the court for an order fixing the reasonable rent. An order fixing the rent at $150 per month was made pursuant to that application and the defendant directed to pay it. She did not and Special Term has granted an order directing the Sheriff to evict her.

The issue presented is a very narrow one. A receiver, even though authorized to fix and collect rents, may not interfere with the possession of the mortgagor unless the mortgage in specific language gives him a right to do so (Holmes v. Gravenhorst, 263 N. Y. 148). The question here is whether the mortgage gives him such a right. The mortgage contains a clause that in the event of default the mortgagor will pay the mortgagee or a receiver the fair and reasonable rental value of the premises occupied by her. This is also the extent of the prior order in this case and a similarly existing order in the Holmes ease (supra). "We do not believe that a provision in the mortgage, any more than a similar outstanding order, that allows a receiver to collect rent from a mortgagor in possession of a residence, allows him to obtain possession of the premises by eviction. There is a marked distinction between the right to collect rent and the right to obtain possession, and the yielding of one does not imply the cession of the other.

We have considered the dictum in Alexander v. Kelly (169 Misc. 521) and do not consider it persuasive.

The order should be reversed and the motion denied, with costs.