Valentine v. Juch — 46 N.Y. St. Rep. 64

Majority

p. 64

Mitchel Valentine, App’lt, v. Wilhelmine Juch, Resp’t.

(Supreme Court, General Term, First Department,

Filed April 14, 1892.)

Headnote

Receiver—When will not be appointed.

In an action for an accounting of rents received by defendant, to which plaintiff claims he is entitled by reason of holding the legal title to the property under an agreement by which he was to hold it to secure moneys advanced, where there is a dispute as to the amount actually due him, a refusal to appoint a receiver of rents and profits is not an abuse of discre- . tian.

Appeal from order denying motion of the plaintiff for the appointment of a receiver of the rents and profits of real estate.

R. N. Arnow, for app’lt; H. Frank, for resp’t.

As shown by the complaint, the action is not one to affect the possession of property, but it is brought to obtain an accounting of the rents received by the defendant, to which the plaintiff claims that he is entitled by virtue of holding the legal title to the premises under an agreement between himself and the executors of the estate of Juch, by which it appears that he virtually holds this title as mortgagee to secure certain amounts which he claims to be due him. It appears by the plaintiff’s affidavit that he stands ready to transfer the title to any person designated by the executors of Juch upon receipt of the amount claimed to be due to him. A dispute exists as to what is actually due him ; and in this state of the controversy, it is suggested that the questions should be resolved in the plaintiff’s favor, and in advance of any determination in the accounting which plaintiff seeks that he should disturb the possession and take from the defendant the rights which were conferred upon her, either as the representative of the estate, or, as is claimed by the plaintiff, as his agent, by the appointment of a receiver.

p. 65

Upon this state of facts, it is clear that at least a question was presented, even if we assume that it was a case in which a receiver could be appointed, for the exercise of discretion, and we are unable to conclude, after an examination of the facts disclosed by the record, that there was no abuse of such discretion.

We think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.