Graybill v. Heylman — 123 N.Y.S. 622

Majority

p. 622

GRAYBILL v. HEYLMAN et al.

(Supreme Court, Appellate Division, First Department.

June 10, 1910.)

Headnote

Mortgages (§ 467^[1] )—Foreclosure—Appointment of Receiver.

The appointment of a receiver of mortgaged premises is unauthorized, where the moving papers do not allege positively that the security is insufficient, though the mortgage provides that a receiver may be appointed, without regard to the value of the property, on five days’ notice to the mortgagor; no notice having been given.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1373; Dec. Dig. § 467.*]

Appeal from Special Term, New York County.

Action by James E- Graybill, as substituted trustee, against Henry B. Heylman, individually and as executor, and others. Erom an order appointing a receiver of mortgaged premises, defendants appeal.

Reversed.

Argued before INGRAHAM, P. J., and McRAUGHRIN, SCOTT, CLARKE, and DOWLING, JJ.

Richard Krause, for appellants.

Samuel D. Shwitzer, for respondent.

There is no positive allegation in the papers upon which this motion was made that the security is insufficient. It is true that the mortgage provides that a receiver may be appointed, without regard to the value of the premises, “on five days’ notice to the party of the first part, her heirs or assigns”; but it does not appear that such notice has been given. The case is much like Jarmulowsky v. Rosenbloom, 125 App. Div. 542 , 109 N. Y. Supp. 968 , wherein a similar order was reversed.

Order appealed from reversed, with $10 costs and disbursements, and motion denied, with leave to renew upon further papers. All concur.