171 Misc. 658 | New York County Courts | 1939
The city of Long Beach, foreclosing tax liens upon premises owned and occupied by the defendants, Gold, procured
Where, however, the contract contained in the mortgage provides specifically that the mortgagee, after default, may enter upon and take possession of the mortgaged premises and not only collect the rents therefrom but is assigned, by the mortgagor, not only such rents but the right to possession and a reasonable rent for the premises occupied by the mortgagor, then the mortgagee, even without the appointment of a receiver, upon demand and refusal, comes rightfully into possession of the premises and may have a
The proceeding here involved is not the foreclosure of a mortgage and the appointment of the receiver, and the rights of the receiver are not dependent upon any contract between the parties but upon the statute. The provisions relating to unpaid taxes in the city of Long Beach and the enforcement of their collection by sale of tax liens and foreclosure of the same are to be found in the charter of the city of Long Beach, being chapter 635 of the Laws of 1922, as amended. There was added to the sections of that act, relating to the foreclosure of tax liens, a new section 118-1, effective May 29, 1939, and constituting chapter 612 of the Laws of 1939. It was under that Act that the receiver, in the instant case, was appointed. The statute provides that at any time after the commencement of an action to foreclose a tax lien, the city of Long Beach shall be entitled, as a matter of right, to the appointment, for its benefit, of a receiver of the rents and profits' of the property affected by the lien being foreclosed, that application for such appointment may be made ex parte and that the treasurer of the city of Long Beach shall be designated as receiver in every case, to serve without any additional fees or compensation. A receiver appointed under that statute is, obviously, in a different position from a receiver whose appointment and whose rights, when appointed, depend upon the contract between the parties. As was pointed out in Holmes v. Gravenhorst (supra), the right to the appointment of a receiver does not give him the right to possession of the premises except where that right is expressly provided for in the contract or except in those cases where the right grows out of facts extrinsic to the contract and where the receiver is appointed under the general equity jurisdiction of the court to preserve the
Under the circumstances presented in the present application, the court is satisfied that equity requires the fixing of a reasonable occupational rent to be paid by the defendants to the receiver. Such rent is hereby fixed in the sum of $1,200 per annum, payable as follows: $150 for each of the months beginning June 6, July 6, August 6, and September 6, 1939, and $75 per month for the remaining months; the rent for June and July, 1939, to be paid within ten days; subsequent monthly rentals to be paid, in advance, on the sixth day. of the month in each case; failure to pay within ten days in any case to result in the right of the receiver to occupation and possession of the premises.