MYLVIRN CORP. v. N. PASSMAN & SON. Inc., et al.(Supreme Court, Appellate Division, First Department.Headnote
Mortgages <@=>468—Foreclosure—Receivership—Preservation of Property and Rents.In the absence of any statutory provision therefor, a mechanic’s lienor has no standing to ask to have the rents impounded, and hence, where there was 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 subject to the lien pending a mortgage foreclosure, an order appointing a receiver of the rents and profits on motion of the lienor will be reversed.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1374, 1375; Dec. Dig. <@=>468.]
<§^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Special Term, New York County.
Action by the Mylvirn Corporation to foreclose a third mortgage, in which N, Passman & Son, Incorporated, mechanic’s lienor, was impleaded with others. Prom an order granting defendant lienor’s motion for the appointment of a receiver of rents, etc., pending the action, the plaintiff appeals. Reversed, and motion denied.
Argued before CLARKE, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and PAGE, JJ.Arthur Knox, of New York City, for appellant.
Alexander Pfeiffer, of New York City, for respondent.
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. Passman & Son, Incorporated, have 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 $10 costs and disbursements, and the motion denied, with $10 costs.