Summary
In New York Building Loan Banking Co. v. Begly (75 App. Div. 308) the Appellate Division, Second Department, held a covenant in a mortgage for the appointment of a receiver was not controlling in the absence of proof showing inadequacy of security.
Summary of this case from W.I.M. Corporation v. CipuloOpinion
October Term, 1902.
William H. Hamilton, for the appellant.
James M. Gray [ Herbert T. Ketcham and Joseph E. Owens with him on the brief], for the respondent.
This is an action for the foreclosure of a second mortgage, and a motion was made by the plaintiff for a receiver of the rents and profits pending the action. This motion was denied, and the plaintiff appeals to this court.
While we might not be disposed to interfere with the order had it granted plaintiff's motion, we do not think the facts are sufficiently strong to justify this court in overruling the discretion of the court at Special Term. The appointment of a receiver is specially within the equitable jurisdiction of the court, even where, as in the case now before us, the mortgage provides for the appointment of such an officer. ( Fletcher v. Krupp, 35 App. Div. 586, 588; Browning v. Sire, 33 Misc Rep. 503.) In the absence of an improper exercise of the discretion vested in the court, this court will not reverse an order of the character of that presented in this case. The covenant of the parties is not controlling ( Brick v. Hornbeck, 19 Misc. Rep. 218; Eidlitz v. Lancaster, 40 App. Div. 446), but is proper to be taken into consideration in determining the question whether or not a receiver should be appointed. ( Eidlitz v. Lancaster, supra.) The matters stated in the moving papers do not show with any certainty that the property covered by the mortgage is not sufficient to satisfy the plaintiff's claim, and there is no way of determining from the complaint the value of the securities held by the plaintiff, which holds an assignment of 108 shares of class A stock assigned to it by the defendant.
The order appealed from should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.