Natelson v. Union Dime Savings Bank

180 Misc. 307, 41 N.Y.S.2d 818, 1943 N.Y. Misc. LEXIS 1905

Opinion

Per Curiam.

The mortgagee, a-ssignee of the rents and with the right to take possession upon default of mortgagor in payment of.interest and principal, was in possession prior to the date of the order appointing plaintiff receiver in supplementary proceedings, and entitled to collect the rents then due and to become due (N. Y. Life Ins. Co. v. Fulton Development Corp., 265 N. Y. 348, 351, 352, citing with approval Donlon & Miller Mfg. Co. v. Camella, 89 Hun, 21). In principle there can be no distinction between rents collected by a receiver and rents collected under an assignment of rents where the purposes for which the rent may be applied are the same. (Womans Hospital v. 67th St. Realty Co., 265 N. Y. 226, 235.) State Bank of Williamson v. Lamoka Power Corp. (269 N. Y. 1), involving a trust mortgage of all the property and earnings of the mortgagor corporation, is inapplicable to this controversy.

Judgment reversed, with costs, judgment directed for defendant, with costs, and order so far as appealed from by defendant reversed, and plaintiff’s motion denied.

Plaintiff’s appeal dismissed.

Hammeb, Shientag and Hecht, JJ., concur.