Webber v. Ahearn — 140 N.Y.S. 12

Majority

p. 12

WEBBER et al. v. AHEARN et al.

(Supreme Court, Appellate Division, First Department.

February 7, 1913.

Headnote

1. Mortgages (§ 437^[1] )—Foreclosure—Necessary Parties.

An action to foreclose a mortgage could not proceed to judgment until a person, in possession under a contract of sale since a period prior to-the filing of the lis pendens, was brought in.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1290; Dec. Dig. § 437.*]

2. Mortgages (§ 467*)—Foreclosure—Receivers.

A receiver of rents and profits should not be appointed, in an action ,to foreclose a mortgage, until a person, in possession under a contract of sale since a period prior to the filing of the lis pendens, is made a party.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1371-1373; Dec. Dig. § 467.*]

Appeal from Special Term, New York County. .

Action to foreclose mortgage by William Webber and others, as executors of Richard Webber, deceased, against James Ahearn and others. Erom an order appointing a receiver of rents and profits, Catherine Reisert Ahearn, a person in possession, but not a party to the action, appeals. Reversed.

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

p. 13

B. F. Norris, of New York City, for appellant.

Maurice Deiches, of New York City, for respondents.

[1,2] The appeal is taken by one Catherine R. Ahearn, -not a party to the action, who claims to be in possession under a contract of sale, and to have been so since a period prior to the filing of the lis pendens. That she is so in possession is not denied, and it is manifest that the action cannot, under the circumstances, proceed to judgment until she is brought in. Nor should a receiver have been .appointed until she was made a party.

The order must therefore be reversed, with $10 costs and disbursements, and the motion for the appointment of a receiver denied, with leave to renew after the appellant has been brought in as a party. All ■concur.