98 Misc. 266 | N.Y. App. Term. | 1917
The plaintiff Anna D. Mulcahy was injured while descending a stairway in the house where she was a tenant. She claims in her complaint that “the defendants through their agent, Charles A. Weber, were in possession, management and control
The defendants do not upon this appeal claim that the plaintiffs failed to prove that Anna D. Mulcahy was injured by the negligence of the person who was in the possession and control of the premises but they do claim that there is no evidence to sustain the allegations of the complaint that they were “in possession, management, and control.”
The evidence shows without dispute that Henry W. Schutt is the owner of the premises. The defendants are trustees of the estate of Anton Faust and as such are the owners of a mortgage on the premises. They started to foreclose this mortgage and secured an order for the appointment of a receiver. Before the receiver qualified Henry W. Schutt, in order to avoid the expense of a receivership, arranged with Charles A. Weber that he should collect the rents of the premises and thereafter he did proceed to collect the rents. Charles A. Weber is the husband of one defendant and the son-in-law of the other, and is in the real estate business and collects the rents of houses owned by the Faust estate. The plaintiffs’ claim is that Charles A. Weber collected the rents as agent of the defendants; that he collected the rents with the consent of the legal owner, who thereby gave the defendants, through their agent, control and possession of the premises and subjected them to the obligations and. liabilities of mortgagees in possession.
In order to prove that the defendants were morb gagees in possession the evidence must be sufficient to
In other words, I will assume that Charles A. Weber, in collecting the rents, was acting with the consent of the defendants for their benefit, but under all the authorities I think that such facts are insufficient to show that the defendants are mortgagees in possession unless we can also assume that Weber’s authority to collect the rent emanated from the defendants and not from the legal owner. In the case of Ireland v. United States Mortgage & Trust Co., 72 App. Div. 95, the owner of the premises made an agreement with the mortgagee itself employing the mortgagee “ as his sole agents to take the sole care, charge and management of'
It follows that the defendants are not mortgagees in possession.
Judgment should, therefore, be reversed, with fifteen dollars costs in each case, and complaints dismissed upon the merits, with costs.
Whitaker and Finch, JJ., concur.
Judgments reversed, with costs in each case.