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Jarvis v. McQuaide

53 N.Y.S. 97 Court N.Y. Sup. Ct. English

Delivered by JOHNSON, J.

Contents

Majority

p. 97
(24 Misc. Rep. 17.)
JARVIS v. McQUAIDE et al.
(Supreme Court, Special Term, Kings County.
June, 1898.)

Headnote

Foreclosure—Agreement eor Receiver—Motion to Appoint Pendente Lite.
A real-estate mortgage provided for the appointment of a receiver pendente lite in case of foreclosure. Without alleging the sufficiency or insufficiency of the security, a motion was made therefor on foreclosure. Held that, while the agreement was enforceable, it could not be enforced on a summary application by motion.
Foreclosure by William S. Jarvis, trustee, against James P. Mc-Quaide and others. On motion to appoint a receiver pendente lite. Motion denied.
Aaron P. Whitehead, for plaintiff.
William L. Stone, for defendant.

This is an action to foreclose a mortgage on real property, and motion is made for a receiver of the rents and profits pendente lite. The motion is based entirely on a clause in the mortgage providing for such a remedy, no allegation being made as to the sufficiency or insufficiency of the security. On authority this motion must be denied. Sickles v. Canary, 8 App. Div. 308 , 40 N. Y. Supp. 948 ; Brick v. Hornbeck, 19 Misc. Rep. 218 , 43 N. Y. Supp. 301 ; Degener v. Stiles (Sup.) 6 N. Y. Supp. 474 . But, apart from precedents, I think the results should be the same. The remedy by receiver is sui generis, and an outgrowth of the precedents and practice of equity. In a sense it is disseisin" before judgment. If a mortgagor should stipulate as a part of the mortgage that he would not defend a suit to foreclose, or that the time to answer or notice for trial in such an action should be five days, it would hardly be claimed that such a stipulation could be enforced. I am not able to see how an agreement for a receiver pendente lite stands on a different basis. Of course, an agreement for a receiver is enforceable, but enforceable as other agreements are, after trial, and by and through a judgment, and not on summary application and practically by mesne process.

The practice allowing a receiver, standing as an exception to the rule, though well recognized and understood, I do not think can be extended by agreement. Motion denied, with $10 costs in the cause to defendant, but without prejudice to application on other grounds.

Motion denied, with $10 costs to defendant, without prejudice to application on other grounds.'

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