136 N.Y.S. 105 | N.Y. App. Div. | 1912
This action was brought to foreclose a mortgage made by Mary A. McKenna and others to the plaintiff for the sum of $2,500 on the 18th day of December, 1896, and duly recorded in Kings county on the 19th day of December of the same year.
On the 5th of January, 1912, the plaintiff moved for the appointment of a receiver of the rents of the mortgaged premises, and the appellant Minnie K. Kallman was appointed and duly qualified. On taking possession appellant found Madalena Sisia in possession under the above-mentioned lease. The tenant was notified of the appointment of the appellant as receiver, and the latter demanded the rent collected by Sisia for the month of January. This was refused, whereupon the appellant secured an order to show cause why Sisia should not pay over the rent to her as receiver, and upon the return-day Sisia appéared by counsel and opposed the motion, but was ordered to pay over the same. Ho appeal was taken from this order. When the appellant demanded the February rents she was met by a like refusal, and upon the return of an order to show cause the learned County Court refused to compel the payment. The objections raised in behalf of Sisia were: (1) That she was not made a party defendant in this foreclosure action; (2) that she was relieved from paying said rent by reason ' of the provision of the lease above mentioned, it being contended that February was the last month of her leasehold possession, and that the sum had already been paid.
The lease under consideration provided that it was “under
This mortgage, made, executed and delivered in 1896, gave the mortgagee the equitable right in a proper case to a receiver of the rents and profits upon the commencement of the foreclosure action (Hollenbeck v. Donnell, 94 N. Y. 342; Rutherfurd Realty Co. v. Cook, 198 id. 29, 34), and the lease to Sisia, being made subject to the existing mortgages, was of course subject to the right of the mortgagee to demand the rent for the term, and the question of whether Sisia had performed all of the covenants on her part to be performed could not be determined at the first of February, for the term did not end until the first day of March, at which time she was to deliver the premises in as good condition as when she came into possession, subject only to the action of the elements. But passing over the point that it could not be determined-whether the covenants had been fully performed, it is enough that a receiver appointed at the instance of a mortgagee, under a mortgage executed and recorded prior to a lease, stands in a very different position to the tenant from that held by the landlord. A tenant under a subsequent lease takes with notice of all the rights which the mortgagee has under the mortgage. (Derby v. Brandt, 99 App. Div. 257.) He is bound to know that if the security is deemed inadequate and the mortgagee seeks equitable relief he is entitled to a receivership. Therefore,
The order appealed from should be reversed, with ten dollars costs and disbursements, and the' motion granted, without costs.
Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted,. without costs.