| N.Y. App. Div. | Nov 15, 1931
Order vacating appointment of receiver and order denying plaintiff’s motion to require receiver to account and pay over affirmed, with ten dollars costs and disbursements, upon the ground that the court had no power to extend the receivership in view of the fact that no action had been commenced by this plaintiff. Lazansky, P. J., Young and Hagarty, JJ., concur; Kapper and Scudder, JJ., dissent and vote to reverse, with the following memorandum: Mentz had a right in his action to a receiver without notice, and his utilization of the order obtained by Arville M. Turner had for its legal effect nothing more than to fix the date of his receivership. He could have had an independent receiver without making Arville M. Turner a party, in which case the question of the rents would be one between him and the owner of the equity. It would be otherwise were Arville M. Turner’s mortgage paramount to Mentz’s mortgage, and a determination of that issue should await the outcome of the action now pending against her brought by the Dorland Realty Corporation, the purchaser under Mentz’s foreclosure.