Thomson v. Erskine

36 Misc. 202, 73 N.Y.S. 166

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1901
• Status: Published

Opinion

McAdam, J.

The plaintiffs, mortgagees of real property in the city of New York, sued the defendant, tenant of the mortgagor, to recover two months’ rent, on the theory of an assignment of the rent to the plaintiffs by the mortgagor. The facts are conceded. The mortgagor still owns the property. The alleged assignment is contained in the bond given by the mortgagor to the plaintiffs; and, by its terms, was to become operative upon default in the payment of principal or interest. Subsequent to the mortgagor’s default, the plaintiffs notified the defendant of the assignment, and the recovery is for rent accruing after the service of the notice.

We see no reason why a mortgagor may "not, if he so desires, agree with his mortgagee, and so stipulate in the bond, to assign the rents of the mortgaged property, in the event of his default. Modus et conventio vincunt legem. The fact that the bond and mortgage also authorize the appointment of a receiver does not affect the assignment. And the appellant’s contention that, because the assignment immediately follows the provision for the appointment of a receiver, the parties contemplated that the rents would on his appointment be assigned to him is not tenable. A receiver does not need an assignment of the rents which he is appointed to receive; and a prior assignee of the rents would have a superior title. Harris v. Taylor, 35 App. Div. 462. The power of the mortgagor to make the assignment is undoubted. Moffatt v. Smith, 4 N. Y. 126; Riley v. Sexton, 32 Hun, 245; Morris v. Niles, 12 Abb. Pr. 103.

The judgment must, therefore, be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.