Public Bank v. London — 159 A.D. 484

Majority

p. 484

Public Bank of New York, Plaintiff, Henry B. Singer, Receiver, Appellant, v. Louis London, Respondent, Impleaded with Annie London and Others, Defendants.

First Department,

December 5, 1913.

Headnote

Foreclosure —receiver of rents — duty of owner in possession to pay for use and occupation.

The owner of real property under foreclosure, who occupies a portion thereof, is bound to pay to the receiver of rents appointed in the action the reasonable value of his use and occupation, and, upon his refusal, an order will be granted compelling payment.

Appeal by Henry B. Singer, as receiver, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1913, denying his application for an order fixing the rental value of certain property.

Abraham H. Rubenstein, for the appellant.

Monte London, for the respondent.

The appellant is a receiver of rents appointed in this action brought to foreclose a mortgage. The respondent is the owner of the fee of the premises under foreclosure and occupied a portion of the premises. The respondent having refused to comply with the demand of the receiver that he pay a reasonable sum for use and occupation, the receiver applied to the court below for an order to compel the respondent to pay such sum, amounting to $150 a month, or to vacate the premises, and the application was denied. By the appointment of the receiver the court took control of the premises, and the respondent as an occupant of a portion thereof stands in no better position than would a tenant and is equally bound to pay the receiver for the value of his use and occupation. Necessarily this must be so, for otherwise if the owner against whom foreclosure was pending occupied the whole of the mortgaged premises, the appointment of a receiver would be a futile thing and the order of the court would be without value for the protection of the res over

p. 485

which.it had assumed jurisdiction. The fact that the jurisdiction of the court in such cases is so elementary is probably the reason why so few precedents are to be found, but Gunning v. Bowers (1 Law Bull. 19) is directly in point.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Clarke, Soott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.