Mylvirn Corp. v. N. Passman & Son, Inc. — 172 A.D. 944

Majority

p. 944

The Mylvirn Corporation, Appellant, v. N. Passman & Son, Inc., Respondent, Impleaded with Others.

Headnote

Mortgage—foreclosure—lienor—right to impound, rents—receiver.

Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 31st day of January, 1916, granting a motion for the appointment of a receiver of rents, etc., in a foreclosure action.

The action is to foreclose a third mortgage. The plaintiff is a mortgagee in possession, and is collecting the rents under the terms of its mortgage and under an assignment of rents. The defendant, N. Pass-man & Son, Inc., has a mechanic’s lien upon the premises. An order appointing a receiver of the rents, issues and profits of the premises has been granted upon the motion of the defendant lienor. In the absence of some statutory provision therefor a mechanic’s lienor has no standing to ask to have the rents impounded. There is no allegation of waste, fraudulent removal of property, or other grounds upon which a court of equity might be moved to appoint a receiver for the preservation of the property pending suit. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present— Clarke, P. J., McLaughlin, Laughlin, Scott and Page, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.