Opinion
June, 1898.
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 A.D. 308; Brick v. Hornbeck, 19 Misc. 218; Degener v. Stiles, 25 N.Y. St. Repr. 422. 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 disseizin 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 enforcible, but enforcible 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.