135 N.Y.S. 419 | N.Y. App. Div. | 1912
This action was brought for the foreclosure of a mortgage made by Louis Polstein and others to the Citizens’ Trust Company of Brooklyn, and assigned by it to the plaintiff. The summons and complaint in the said action was served upon Yetta Bloom, who was the owner of the premises subject to the said mortgage, on the 16th of June, 1911. At that time Sender Jarmulowsky held a second mortgage upon the said premises. Oh the 3d of July, 1911, Jarmulowsky filed an answer m this action, wherein he recited his mortgage, and prayed for judgment that out of any surplus that might arise
Appellant contends that the order of July fifth, appointing Levine as receiver, was void. It was not made upon notice to Yetta Bloom, and she was not then in default (Code Civ. Proc. §§ 713, 714; Dazian v. Meyer, 66 App. Div. 575; Jarmulowsky v. Rosenbloom, 125 id. 542), and there was no action pending against her for the foreclosure of Jarmulowsky’s second mortgage, for a copy of his answer demanding such affirmative relief had not been served upon her. (Code Civ. Proc. § 521.) But on July twelfth, when Scott was appointed receiver in this action, upon ■ plaintiff’s motion, the defendant Yetta Bloom was then in default, and such order was properly made. (Code Civ. Proc., supra; Colwell v. Garfield Nat. Bank, 119 N. Y. 408; Woerishoffer v. Peoples, 120 App. Div. 319; Fletcher v. Krupp, 35 id. 586.) While such appointment was for the benefit of the plaintiff in the first instance, if the mortgaged property sold for sufficient to discharge his mortgage debt and the expenses of the action and of the sale, the rents in the receiver’s hands would become applicable to the satisfaction of the second mortgage. -(Continental Ins. Co. v. Reeve, 149 App. Div. 835.) The briefs of counsel both for appellant and respondent are principally devoted to a discussion of the
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Jenks, P. J., Hirschberg, Thomas and Oarr, JJ., concurred.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.