Summary
In Eidlitz v. Lancaster (40 App. Div. 446) Presiding Justice VAN BRUNT, writing for this court, said (at p. 447): "It is true that the mortgage contains a receiver clause; but it is well established that the existence of such a clause gives the mortgagee no absolute right to the appointment of a receiver, the action for foreclosure being a proceeding in a court of equity; but that such a clause is to be considered among the other features of the case in determining the propriety of granting a motion for the appointment of a receiver."
Summary of this case from W.I.M. Corporation v. CipuloOpinion
May Term, 1899.
Louis O. Van Doren, for the appellant.
Frederick Hulse, for the respondents.
The statement of facts in the points submitted on the part of the respondents is not entirely accurate. Looking at the record we find that there is no proof that all the obligors in the bond are insolvent; nor is there any proof as to the value of the mortgaged premises contained in the moving papers. It is true that appended thereto is the affidavit of a real estate broker that the premises are not worth more than $28,000 or $29,000 (the mortgage being for $30,000); but in said affidavit it nowhere affirmatively appears that the affiant ever saw the premises in question or that he was able to judge advisedly of their value. It is conceded that some interest and taxes are due, but the overwhelming evidence is that the value of the premises is considerably in excess of the amount secured to be paid by the mortgage, there being six affidavits to that effect of persons engaged in the real estate business who swear that they have examined the premises and in that way have become acquainted with the value thereof.
It is true that the mortgage contains a receiver clause; but it is well established that the existence of such a clause gives the mortgagee no absolute right to the appointment of a receiver, the action for foreclosure being a proceeding in a court of equity; but that such a clause is to be considered among the other features of the case in determining the propriety of granting a motion for the appointment of a receiver.
There was some evidence in regard to the rent which is being received for the premises not being proportionate to the value of the premises as claimed upon the part of the defendants. But, as some portions of the premises were vacant, this argues little or nothing in respect to their value.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.