Monroe County Savings Bank v. Bray

147 Misc. 767, 265 N.Y.S. 869, 1933 N.Y. Misc. LEXIS 1210

• Court: New York Supreme Court
• Decided: April 27, 1933
• Status: Published

Opinion

Cunningham, J.

“ To justify-the appointment of a receiver on the application of the mortgagee it must appear that the mortgaged premises are an inadequate security for the debt and that the parties personally liable for the debt are insolvent.” (Finch v. Flanagan, 208 App. Div. 251, 254.)

“ The burden is always on the applicant to show its necessity. Courts are reluctant to resort to the summary remedy of a receivership, unless the proof clearly warrants such procedure.” (People v. Smith Co., 230 App. Div. 268, 275.)

The plaintiffs mortgage is for $9,000. ' The parties differ as to the value of the premises However, it is not disputed that the gross income from the property is $130 a month, with one apartment vacant. This is a ten per cent return on a valuation of $15,600.

The plaintiff has failed to satisfy me that the property is not worth at least the amount due upon its mortgage, including interest and taxes. " Under the circumstances, the court does not feel justified in exercising its discretion to appoint a receiver.

The motion is denied.