Lyng v. Marcus

118 N.Y.S. 1056

• Court: New York Supreme Court
• Decided: May 15, 1909
• Status: Published

Opinion

GILDERSLEEVE, P. J.

While the usual receivership clause in a mortgage is not of itself alone sufficient to give the plaintiff a right to a receivership of rents pending foreclosure, in the absence of proof that the property is not worth the amount of the mortgage, and that the mortgagor is not responsible (Eidlitz v. Lancaster, 40 App. Div. 446, 59 N. Y. Supp. 54), still, where it is specially stipulated in the mortgage, in addition to the receivership clause, that the rents and profits are pledged as additional security, the rule seems to be different, and the plaintiff has a right to the receivership. Butler v. Frazer (Sup.) 57 N. Y. Supp. 900; Sage v. Mendelson, 42 Misc. Rep. 137, 85 N. Y. Supp. 1008; McKellar v. Rogers, 52 N. Y. Super. Ct. 360.

This motion to set aside' the ex parte order appointing a receiver pendente lite of the rents and profits is denied, with $10 costs to abide the event. Settle order on notice.