Nankin v. Lorran

New York Supreme Court

Nankin v. Lorran

145 Misc. 570, 259 N.Y.S. 930, 1932 N.Y. Misc. LEXIS 1292

DecidedSeptember 12, 1932

StatusPublished

This text of 145 Misc. 570 (Nankin v. Lorran) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nankin v. Lorran, 145 Misc. 570, 259 N.Y.S. 930, 1932 N.Y. Misc. LEXIS 1292 (N.Y. Super. Ct. 1932).

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Opinion

Cure, J.

On May 21, 1932, the second mortgagee commenced foreclosure and obtained the appointment of a receiver on May 31, 1932. On July 28, 1932, the first mortgagee began foreclosure proceedings and on August 2, 1932, entered an order appointing a receiver, the latter not being the same person who was appointed at the instance of the second mortgagee. The senior mortgage contained a provision entitling the holder to the appointment of a receiver. There were no conditions, and except for rule 179 of the Rules of Civil Practice this question would be answered by that clause in the mortgage. But rule 179 in substance provides that where a receiver has been appointed, his appointment shall be extended to any subsequent suit or proceeding relating to the same property. That was not done in this instance by error. The first mortgagee, not being a party to the foreclosure action brought by the second mortgagee, had no means of knowing that the action was started or what steps, if any, had been taken by the holder of the junior mortgage. As the matter is presented now there are two orders and two receivers. The second order is not a nullity as respondent contends. It stands and puts into effect the paramount [571]*571rights of the senior mortgagee over the junior mortgagee. Not having been set aside, it is effective and the receiver named in it supplants the other receiver. There is authority for this holding in Metropolitan Life Insurance Co. v. Jash-Lap Realty Corp. (138 Misc. 68; mod. and affd., 231 App. Div. 85). The receiver appointed under the order of May 31, 1932, will discontinue as receiver and account to his successor for any rents collected subsequent to August 2, 1932, the date of appointment of the latter.

Motion to remove receiver is granted. Settle order on notice. Motion to fix rents is granted, and rents will be fixed as recommended in appraisal dated August 4, 1932.

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Cure, J.

On May 21, 1932, the second mortgagee commenced foreclosure and obtained the appointment of a receiver on May 31, 1932. On July 28, 1932, the first mortgagee began foreclosure proceedings and on August 2, 1932, entered an order appointing a receiver, the latter not being the same person who was appointed at the instance of the second mortgagee. The senior mortgage contained a provision entitling the holder to the appointment of a receiver. There were no conditions, and except for rule 179 of the Rules of Civil Practice this question would be answered by that clause in the mortgage. But rule 179 in substance provides that where a receiver has been appointed, his appointment shall be extended to any subsequent suit or proceeding relating to the same property. That was not done in this instance by error. The first mortgagee, not being a party to the foreclosure action brought by the second mortgagee, had no means of knowing that the action was started or what steps, if any, had been taken by the holder of the junior mortgage. As the matter is presented now there are two orders and two receivers. The second order is not a nullity as respondent contends. It stands and puts into effect the paramount [571]*571rights of the senior mortgagee over the junior mortgagee. Not having been set aside, it is effective and the receiver named in it supplants the other receiver. There is authority for this holding in Metropolitan Life Insurance Co. v. Jash-Lap Realty Corp. (138 Misc. 68; mod. and affd., 231 App. Div. 85). The receiver appointed under the order of May 31, 1932, will discontinue as receiver and account to his successor for any rents collected subsequent to August 2, 1932, the date of appointment of the latter.

Motion to remove receiver is granted. Settle order on notice. Motion to fix rents is granted, and rents will be fixed as recommended in appraisal dated August 4, 1932.

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Bluebook (online)

145 Misc. 570, 259 N.Y.S. 930, 1932 N.Y. Misc. LEXIS 1292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nankin-v-lorran-nysupct-1932.

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