Harris v. Taylor

22 A.D. 109 | N.Y. App. Div. | 1897

Per Curiam:

This action was brought to foreclose a mortgage on real property on which there were several prior mortgages. The appellant was a mortgagee, and also held an assignment of the rent of the mortgaged premises to the extent of $200 a month. An order was made appointing a receiver of the rents in this action, and the receiver was directed, after making certain disbursements, to pay over such rents to the plaintiff to apply upon her mortgage. A motion was made to vacate or modify this order by striking out the provision directing the receiver to pay over the rents to the plaintiff. This motion was denied, and from such denial the present appeal is taken.

We think that the court should have granted the motion so far as to direct the receiver to retain the rents. The plaintiff in this action was entitled to the rents only in case there was a deficiency upon the sale of the premises. If the premises realized sufficient to pay the mortgage, then the rents belonged either to the owner of the equity of redemption or to his assignee.

The order appealed from should, therefore, be reversed, and the order appointing the receiver modified by striking out the provision requiring him to pay over the rents to the respondent, without ■costs.

Present— Van Brunt, P. J., Barrett, Rumsey, Williams and Patterson, JJ.

Order reversed, and order appointing receiver modified by striking out the provision requiring him to pay over the rents to the respondent, without costs.