116 Misc. 567 | N.Y. Sup. Ct. | 1921
The principal question which requires consideration in this case is whether the plaintiff is entitled to a lien upon the timber which the defendant has cut, but has not removed from the mortgaged premises. The mortgage in question, which was a purchase money mortgage, contained this language: “ The mortgagor may cut any or all standing timber upon the premises.”
The timber-in question was all cut during a period antedating the default upon the mortgage. A very large amount of timber was cut, evidently more than the defendant was able to take care of. It has been allowed to remain upon the premises, and has been
Nor do I find anything in Ensign v. Colburn, 11 Paige, 503, to the contrary. In that case the cutting was done by one who had no authority under the mortgage to do it, and the opinion specifically lays down the necessity of a finding of bad faith as a prerequisite to injunctive relief against a mortgagor who has such a reserved right to cut timber as in this ease. The eases in respect to waste, such as Van Pelt v. McGraw, 4 N. Y. 110; Brady v. Waldron, 2 Johns. Ch. 148; Miles v. Fralich, 11 Hun, 561, and Ogden Lumber Company v. Bussey, 92 App. Div. 143, are inapplicable, since the reservation in the mortgage, itself, precludes the idea of waste in this case.
If the cutting had occurred after default in the mortgage, the situation would have been different. The reservation of the right to cut the timber might well he construed as limited to a time previous to de
A decision will be signed accordingly.
Ordered accordingly.