| N.Y. Sup. Ct. | Jun 15, 1898
This is an action to foreclose a mortgage on real property, and motion is made for a receiver of the' rents and profits pendente lite. The motion is based entirely on a clause in the mortgage providing for such a remedy,' no allegation being made as to the sufficiency or insufficiency of the security. On authority this motion must be denied. Sickles v. Canary, 8 A.D. 308" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/sickles-v-canary-5180900?utm_source=webapp" opinion_id="5180900">8 App. Div. 308; Brick v. Hornbeck, 19 Misc. 218" court="N.Y. Sup. Ct." date_filed="1897-01-15" href="https://app.midpage.ai/document/brick-v-hornbeck-5403738?utm_source=webapp" opinion_id="5403738">19 Misc. Rep. 218; Degener v. Stiles, 25 N. Y. St. Repr. 422. But apart from precedents, I think the results should .be the same. The remedy by receiver is sui generis, and an outgroiyth of the precedents and practice of equity. In a sense it is disseizin before judgment. If a mortgagor should stipulate as a part of the mortgage that he would not defend a suit to foreclose or that the time to answer or notice for trial in such an action should be five days it would hardly be claimed that such a stipulation could be enforced. I am not able to see how an agreement for a receiver pendente lite stands on a different basis. Of1 course, an agreement for a receiver is enforcible, but enforciblé as other agreements are, after trial and by and through a judgment, and not on summary application and practically by mesne process.
The practice allowing a receiver, standing as an exception to the rule, though well recognized and understood, I do not think can be extended by agreement.
Motion denied, with $10 costs, to defendant, without prejudice ' to application on other grounds.