Isaacs v. Berson

268 A.D. 796, 49 N.Y.S.2d 235, 1944 N.Y. App. Div. LEXIS 3525

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 1944
• Status: Published

Opinion

Resettled order dated April 18, 1944, denying motion of appellant receiver to fix the occupational rent to be paid by the judgment debtors and also by Alexander Berson, for the use of portions of certain real property at 793 DeKalb Avenue, Brooklyn, N. Y., reversed on the law, with ten dollars costs and disbursements, the motion granted, without costs, and the matter remitted to Special Term to fix the amounts to be paid. The receiver in supplementary proceedings became vested with the right to possession of the judgment debtors’ real property to satisfy the judgment. This right to possession entitled him to have fixed the occupational value of the property, so far as it was occupied by the judgment debtors and their son. This is a statutory right. (Civ. Prac. Act, § 807; Chadeayne v. Gwyer, 83 App. Div. 403; Hall v. Senior, 54 Misc. 463; 3 Weed on New York Law of Real Property [3d ed.] p. 1332.) The cases upon which the respondents rely are not to the contrary. They merely sustain what the foregoing cases hold — that title to the real property of judgment debtors does not vest in the receiver in supplementary proceedings. Likewise, Holmes v. Gravenhorst (263 N. Y. 148) is not to the contrary. It recognizes that a receiver may be given possession of a judgment debtor’s real property where that right is founded upon a statute, as in the case at bar, and as was the situation in City of Long Beach v. Gold (171 Misc. 658) and Matter of Treasurer of City of N. Y. [Gold Seal Iron Works] (183 Misc. 84). Appeal from order dated March 25, 1944, dismissed, without costs, as academic. Carswell, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ., concur.