63 N.Y.S. 250 | N.Y. App. Div. | 1900
In the order appealed from, the receiver is directed to apply the rents and profits collected by him — “First, to the reduction and extinguishment of the amount due to the plaintiff herein; second, to apply any surplus * * * to the amount due Henderson, Hull & Co.” The latter claimed, by the terms of their bond and mortgage, that the defendant McAllister “pledged the rents as additional security for the money secured thereby”; and, having had a receiver appointed, while it was entirely proper for the court on this motion to extend the receivership in the action to plaintiff’s claim, we do not think it was right to adjudicate upon the claims of the respective mortgagees to the rents.
The order appealed from should accordingly be modified by requiring the receiver to hold the rents collected subject to the further order of the court, and as so modified it should be affirmed, without costs.