130 N.Y.S. 371 | N.Y. App. Div. | 1911
This action was brought by the plaintiff to foreclose a third mortgage -held by it on certain tenement property known as 4000 Third avenue. Immediately after the action was commenced, and on April 4, 1910, plaintiff made an ex parte application for and obtained, on the ground.of inadequacy of the
On December 12, 1910, judgment was entered directing a sale of the premises to . satisfy plaintiff’s claim of about $3,000, and on January 9, 1911, the property was offered for sale at public • auction, to be sold subject to the first mortgage of $13,000 and a second mortgage of $2,000. No bid was made at the sale and the property accordingly had to be withdrawn.
The receiver, solely under the authority of the order appointing him in this action, collected the rents down to March 13, 1911, amounting to $864.46. . On said day, in another action brought by the respondent Strauss, to- foreclose his second mortgage of ■ $2,000, an order was entered extending the receivership of this action to that action, and on or about April 11, 1911, the receiver at the instigation, as is alleged, of the respondent. Strauss, not a party to this action, obtained- an order directing plaintiff and the Said Strauss' to show cause why an order should not be made directing and instructing the receiver to apply the rents in his possession, including those collected by him prior to March 13, 1911, as well as those collected since, to the making of repairs to the premises and to the payment of any unpaid taxes upon the premises. The-Special Term, over the opposition of the plaintiff, granted .the motion as to repairs but not as to the taxes and from the order entered thereon this appeal is tgken.
The appellant concedes that its interests in the rents collected 'since the extension of the. receivership, that is to say, since March 13, 1911, must give way to the priority of .the second mortgage and, therefore, does not object to the application of the sums thereafter collected to repairs, but claims that it acquired a specific lien on the rents collected prior to said date.
The receiver was not appointed in this action generally for the benefit of all parties according to their respective interests, but was specifically appointed for the benefit of the plaintiff. Washington Life Ins. Co. v. Fleischauer (10 Hun, 117) was an action brought for the foreclosure of the'first mortgage where a second mortgagee applied for and obtained a receiver for his own
In Ranney v. Peyser (83 N. Y. 1) Rapallo, J., said: “ The plaintiff procured the receivership of the rents of the mortgaged premises for his own benefit, as junior mortgagee. He did not obtain it for the benefit of Maas, the prior mortgagee, who was not a party * * * and had nothing to do with the receivership. If the plaintiff had not obtained it the rents would have gone into the hands of Peyser, the mortgagor. * * "x" Until Maas took that step [an application for a receivership of his own] he had no right to the rents. * * * Só long as Maas neglected to take any legal measures on his
We think, therefore, that the plaintiff is entitled to the specific lien upon the rents collected by the receiver appointed upon its application, due to its diligence, down to the time of the entry of the order extending the receivership in the second action.- •
The order appealed from should, therefore, be modified by inserting-after the words “ and instructed to apply the moneys
Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. ,
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.