Eidlitz v. Lancaster — 40 A.D. 446

Majority

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Mathilde Eidlitz, as Executrix and Trustee; Otto M. Eidlitz and Another, as Executors and Trustees of Marc Eidlitz, Deceased, Respondents, v. Carrie A. Lancaster, Appellant, Impleaded with Albert C. Morris and Others.

Headnote

Mortgage— a receivers clause therein does not give an absolute right to have a receiver appointed, on a foreclosure thereof.

The existence in a mortgage of a receiver’s clause does not give the mortgagee; in an action brought by him for the foreclosure of the mortgage, an absolute right to the appointment of a receiver of the rents and profits of the mortgaged premises, but such clause is to be considered in connection with the other features of the case in determining the propriety of appointing a receiver.

Appeal by the defendant, Carrie A. Lancaster, from an order of the Supreme Court, made at the New York Special Term aiid entered in the office of the clerk of the county of New York on the 7th day of April, 1899, granting the plaintiffs’ motion for the appointment of a receiver of the rents and profits of the premises - which are the subject of a mortgage to foreclose which the action is brought.

Louis O. Van Doren, for the appellant.

Frederick Hulse, for the respondents.

The statement of facts in the points submitted on the part of the respondents is .not entirely accurate. Looking at the record we find that there is no proof that .all the obligors in the bond áre insolvent; nor is there any proof as to the value of the mortgaged premises contained in the moving papers. It is true that appended thereto is the affidavit of a real estate broker that the premises are not worth more than $28,000 or $29,000 (the mortgage being for $30,000); but in said affidavit it nowhere affirmatively appears that the affiant ever saw the premises, in question or that he was able to judge advisedly of -their value. It is conceded that some interest and taxes are due,.but the overwhelming evidence is that the value of the premises is considerably in excess of the amount secured to be paid by the mortgage, there being six affidavits to that effect of persons- engaged in the real estate business . who swear that they have

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examined the premises and in that way have become acquainted with the value thereof.

It is true that the mortgage contains a receiver clause; but it is. well established that the existence of such a clause gives the mortgagee no absolute right to the appointment of a receiver, the action for foreclosure being a proceeding in a court of -equity; but that such a clause is-to be considered among the other features of the case in determining the propriety of granting a motion for the appointment of a receiver.

There was some evidence in regard to. the rent which is being received for the premises not being proportionate to the value of the premises as claimed upon the part of the defendants. But, as some-portions of the premises were vacant, this argues little or nothing in respect to their value.

The order appealed from shoiild be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars-costs.

Barrett, Rumsey- and Patterson, JJ., concurred.

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