12 N.Y.S. 601 | N.Y. Sup. Ct. | 1890
It appears that in this action a receiver of the rents and profits was appointed on the 29th of March last, and collected the rents, which were payable in advance. The plaintiffs, as purchasers, received their deed on the 4th of October, 1889, and made application that the receiver pay the plaintiffs’ attorney expenses of the agent, his commissions for collecting the October rents and for disbursements in the care of the premises prior to October 4th, and the expenses incurred after the 4th of October during that month, amounting to $29, and also to apportion the rent for October to the plaintiffs. The plaintiffs were the assignees of the agent, Zittel, for value, of his claims just mentioned. The application for the payment of the agent’s expenses and commissions, amounting to $77.01, with interest, was granted, and the amount directed to be paid, but the application to apportion the October rents was denied. A supposed difficulty which presents itself in the consideration of this appeal arises from the fact that it is alleged by the receiver that the owner of the equity of redemption had not been served with notice of the motion, and this point is taken. It is quite clear that, so far as this appeal is concerned, the defendant Fink has no interest xvhatever in the fund that is left, for reasons which will appear.. The rent was payable, as already suggested, in ad Alance; but the only rent the receiver could take was for the 1st, 2d, and 3d days of October, the delivery of the deed making him functus officio thereafter, and entitling the plaintiffs to the rent accruing subsequently. ■ Where the purchaser is ready and willing to perform, and the delay is on the part of the vendors, the purchaser is entitled to the rents and profits from the time when, according to the terms of the contract, possession should have been.delivered, or, if the vendor .has remained in ..possession, he is chargeable
Daniels, J. I agree to result.
Van Brunt, P. J., concurs.