Pomerantz v. Hartman — 126 N.Y.S. 649

Majority

p. 649

POMERANTZ v. HARTMAN et al.

(Supreme Court, Appellate Division, Second Department.

December 30, 1910.)

Headnote

1. Receivers (§ 16^[2] )—Grounds—Statutory Provisions.

Where it does not appear that the property is to be removed beyond: the jurisdiction of the court, or lost or materially injured, or destroyed, as provided by Code Civ. Proc. § 713, the court at Special Term has no authority to appoint a receiver.

[Ed. Note.—For other cases, see Receivers, Cent. Dig. §§ 24, 28; Dec. Dig. § 16.*]

'2. Specific Performance (§ 109*)—Grounds for Appointment."

In an action for specific performance of a contract for the sale of real estate, where it appeared that $1,300 had been paid on the purchase price, with only $250 remaining to be paid, that the property was in possession of plaintiff’s assignor, holding under the contract, and there was nothing to indicate that all of the rights of a defendant, who subsequent to the contract became the record owner, having purchased, as alleged

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by plaintiff, at a foreclosure sale in collusion with defendant vendor and in fraud of plaintiff’s rights, would not be secure, the appointment at the , instance of such defendant of a receiver of the rents and profits pending the action was improper.

[Ed. Note.—For other cffses, see Specific Performance, Cent. Dig. § ; Dec. Dig. § 109.^[2] ]

Hirschberg, P. J., and Thomas, J., dissenting.

Appeal from Special Term, Kings County.

Action by Mary Pomerantz against Helen Hartman and another. Prom an order appointing a receiver of the rents and profits of real estate pending the action, plaintiff appeals.

Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, THOMAS, and RICH, JJ.

Nathan D. Shapiro, for appellant.

Oscar Bleezard, for respondents.

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 of 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’s1 assignor entered into possession of said premises under said contract; and that nearly a year later the defendant 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 Mintz 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. Prom 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, with1 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 ex

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penses, 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 $10 costs and disbursements.

JENKS and RICH, JJ., concur. HIRSCHBERG, P. J., and THOMAS, J-, dissent.