p. 864Mary Pomerantz, Appellant, v. Mintz Realty Company, Defendant, Impleaded with Helen Hartman, Respondent.Headnote
¡Receiver of re>nts and profits — suit for specific performance.A receiver of rents and profits of lands .will not be appointed pending a suit for' the specific performance of a contract to convey where it appears that the plaintiff’s assignor is in possession under the contract; that $1,300 of the pur- ' chase price has been paid', leaving a balance due of only $250 and one Of the defendants claiming title as the purchaser on foreclosure is charged with making the purchase in collusion with the other defendant in fraud of the plaintiff, there being nothing to indicate that all the rights of the défendant will not be secure.
Unless it appear that property is to be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed, as provided by section 713 of .the Code of Civil Procedure, the Special Term has no authority to appoint a receiver, '
Hibschberg, P. X, and Thomas, J., dissented.
Appeal by the plaintiff, Mary Pomerantz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of May, 1910, appointing a receiver of the rents and profits during the pendency of the action.
Nathan N. Shapiro, for the appellant.
Oscar Bleezard [George N. Alexander with him on the brief], for the respondent. ■ '
The plaintiff brings this action for the specific performance of a contract for the sale of real estate. The complaint, sets forth that on or about the 18th day óf August, 1908, the defendant Mintz Realty Company entered into an agreement in writing with the plaintiff for the.sale of certain real property described therein, and that the sum of $1,300 was paid upon said'purchase, leaving only $250 to be paid upon the final transfer; that on or about the 1st day of January, 1909, the plaintiff’s assignor entered into possession of said premises under said contract, and that nearly a year later the
p. 865defendant Helen Hartman became the record owner of the property, she having purchased the same at a foreclosure sale on the 5th day of November, 1909, it being claimed on the part of the plaintiff that this purchase was made in collusion with the defendant Hintz Realty Company, and in fraud of the .rights of the plaintiff. The prayer of the complaint is that the defendants be compelled to specifically perform the contract. On the 27th day of April, 1910, an order to show cause was procured by the defendant Helen Hartman, and upon the return of such order an order was made appointing a receiver of the rents and profits of the real estate pending the action. From this order the plaintiff appeals.
There is certainly nothing in the papers before the court on this motion which shows that the property in the possession of plaintiff’s assignor is to “ be removed beyond the jurisdiction of the court, or lost, materially injured, or destroyed,” as provided by section 713 of the Code of Civil Procedure; and without such facts appearing we do not understand that the court at Special Term has any authority for appointing a receiver. Thirteen hundred dollars has been paid upon the purchase price, with only $250 remaining to be paid, and the property is in the possession of one holding under the contract. It is real estate, and will be there when the litigation is ended, and there is nothing to indicate that all of the rights of the defendant will not be secure.
A receiver, so far as we can discover, could serve no other purpose in this proceeding than to unnecessarily burden a small property with expenses, and with the light we now have upon the questions at issue, there is nothing to warrant this burden.
The order appealed from should be reversed, with ten dollars costs and disbursements.
Jenics and Rich, JJ., concurred ; Hirsohberg, P. J., and Thomas, J., dissented.
Order reversed, with ten dollars costs and disbursements.