Opinion
May 1, 1912.
Max H. Newman, for the appellant.
David Podell [ Louis W. Osterweis with him on the brief], for the respondent.
This action was brought for the foreclosure of a mortgage made by Louis Polstein and others to the Citizens' Trust Company of Brooklyn, and assigned by it to the plaintiff. The summons and complaint in the said action was served upon Yetta Bloom, who was the owner of the premises subject to the said mortgage, on the 16th of June, 1911. At that time Sender Jarmulowsky held a second mortgage upon the said premises. On the 3d of July, 1911, Jarmulowsky filed an answer in this action, wherein he recited his mortgage, and prayed for judgment that out of any surplus that might arise upon the sale to be had herein he be paid the amount of such mortgage. On the 5th of July, 1911, Jarmulowsky obtained ex parte an order appointing Harry Levine receiver of the rents of the mortgaged premises. This order was obtained without notice to the defendant Yetta Bloom. Subsequently and on July twelfth, on application of the plaintiff in this action, and upon notice to the defendant Jarmulowsky but without notice to the defendant Yetta Bloom, the order of July fifth, appointing Harry Levine as receiver of said rents and profits, was vacated and set aside and one Thomas Scott was appointed as such receiver. After the entry of a judgment of foreclosure in this action, and the sale of the mortgaged premises thereunder, Yetta Bloom moved to vacate the order made on July fifth appointing Levine receiver, and also the order made July twelfth appointing Scott receiver. So much of the motion as sought to vacate the order appointing Scott as receiver was denied, and from that order this appeal is taken.
Appellant contends that the order of July fifth, appointing Levine as receiver, was void. It was not made upon notice to Yetta Bloom, and she was not then in default (Code Civ. Proc. §§ 713, 714; Dazian v. Meyer, 66 App. Div. 575; Jarmulowsky v. Rosenbloom, 125 id. 542), and there was no action pending against her for the foreclosure of Jarmulowsky's second mortgage, for a copy of his answer demanding such affirmative relief had not been served upon her. (Code Civ. Proc. § 521.) But on July twelfth, when Scott was appointed receiver in this action, upon plaintiff's motion, the defendant Yetta Bloom was then in default, and such order was properly made. (Code Civ. Proc., supra; Colwell v. Garfield Nat. Bank, 119 N.Y. 408; Woerishoffer v. Peoples, 120 App. Div. 319; Fletcher v. Krupp, 35 id. 586.) While such appointment was for the benefit of the plaintiff in the first instance, if the mortgaged property sold for sufficient to discharge his mortgage debt and the expenses of the action and of the sale, the rents in the receiver's hands would become applicable to the satisfaction of the second mortgage. ( Continental Ins. Co. v. Reeve, 149 App. Div. 835. ) The briefs of counsel both for appellant and respondent are principally devoted to a discussion of the question whether the order of July fifth, appointing Levine receiver, was properly made. That question is not before this court. That order was vacated by the order of July twelfth, and the order appealed from simply denies so much of the motion as seeks to vacate the order appointing Scott. It is true that that order required Levine within five days after service of a copy of that order upon him to file his account of any rents collected by him, pursuant to the terms of the order dated July fifth which appointed him. It does not appear that Levine ever collected any rents; but if he did, so much of the order as required him to account therefor cannot prejudice the appellant. So, too, the order of July twelfth in defining the powers of Scott as receiver refers to the provisions of the order of July fifth. It may be that the order imperfectly defines the receiver's powers, but it was not void, and it appears that the defendant Yetta Bloom, without objection upon the ground of indefiniteness, permitted such receiver to collect the rents until after the judgment of foreclosure and sale.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
JENKS, P.J., HIRSCHBERG, THOMAS and CARR, JJ., concurred.
Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.