76 N.Y.S. 818 | N.Y. App. Div. | 1902
This is an action to foreclose a third mortgage upon real estate. The appeal is from an order settling the accounts of appellant Prince as receiver of rents and profits. The respondent Berinstein held a second mortgage upon the same premises and commenced an action to foreclose it on the 13th day of November, 1900, fifteen days before this action was begun, making the plaintiff herein a party. On the 19th of November, 1900, between the commencement of Berinstein’s action and this, an action was brought to foreclose the -first mortgage upon the premises and both the second and third mortgagees were made parties defendant. Berinstein made an application to the court on the 19th day of November, 1900, for the appointment of a receiver of the rents and profits of the premises. This motion was denied, without prejudice to renewal, on the 12th -day of December, 1900, upon the ground that the affidavits were so conflicting that it was impossible to determine whether it was necessary for the protection of the plaintiff that a receiver should be appointed. The receiver was appointed by an order granted by default on the 18th day of December, 1900, but no notice of the application was given to the defendant Berinstein. The order recited that Prince was appointed receiver of the rents and profits then due or to grow due during the pendency of the action “ for the benefit of the plaintiff,” and it further provided, among other things, as follows: “ And said Receiver is further authorized and -directed to make such ordinary repairs on said premises as may be necessary; and to pay the taxes and water rates now or hereafter due thereon, and to keep the same insured against loss by fire for the benefit of plaintiff.” At the time of the appointment of the receiver, or during the receivership and prior to the judgment of foreclosure, there were taxes due and unpaid aggregating $519.05, and during the same period the sum of $404.70 became due and unpaid for water rates on said premises. There remained in the hands of the receiver the sum of $852.62, being collections for rent, but he did not pay the taxes or water rates. The action brought to
Bor these reasons the order should be affirmed, with ten dollars costs and disbursements.
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.