Opinion
February 8, 1918.
Cornelius A. Baldwin [ Jacob H. Shaffer with him on the brief], for the appellant.
Peter P. Smith [ Joseph J. Reiher with him on the brief], for the respondent.
The appointment of a receiver in an action of partition or of foreclosure is a harsh remedy, and it has been uniformly held that the property involved in such an action will not be taken from the party in possession and placed in charge of a receiver during the pendency of the action except upon clear and convincing proof that there is danger of loss or damage, and that such appointment is necessary for the protection of the parties to the action and their interests. There must be danger of irreparable loss, and courts of equity will exercise extreme caution in the appointment of receivers, which should never be made until a proper case has been clearly established. The moving papers do not show that the appointment of a receiver is necessary to protect the rights of the parties. Not a fact is shown raising a presumption of mismanagement, possible loss or confusion. No reason is shown why the management of the property during the pendency of the action, by the appellant, will not be as proper and satisfactory as it has been during the last twelve years, during which time no complaint has been made of her management of the property. There is nothing to show that the appellant is not financially able to make good any deficiency loss in consequence of any mismanagement of the property during the pendency of the action; on the contrary, it would seem that her unincumbered interest therein is amply sufficient to fully protect the plaintiff and his non-complaining brother. The equity in the property is less than $3,000. In the natural course of events, a partition or sale will be had in three or four months; the rent accruing during that time cannot exceed $180, and there is no occasion for a receiver.
There is a further reason why the order should be reversed. It appears without contradiction, from the opposing affidavit of the appellant, that in order to save the costs and expenses of a partition action she has offered to purchase the plaintiff's interest in the property on the basis of its value as appraised, or upon its appraised value to be determined by any impartial real estate expert acceptable to the plaintiff, and that she has offered to consent to its sale at public auction after properly advertising it, which is all that could possibly result in this action. Furthermore, the order seems to be directed to the interests of the plaintiff. The rights of the parties in the property are equal, and each is entitled to the same protection, yet in the order under consideration the defendants only are enjoined and restrained from collecting the rents during the pendency of the action. No restraint is placed upon the plaintiff, and the receiver is directed, after deducting his fees and disbursements from the proceeds of the sale of the property, to apply the remainder to the payment of the deficiency that may exist in the amount directed to be paid to the plaintiff in and by the judgment, a direction suitable and proper in a foreclosure action but not in one of partition where there is another defendant entitled to precisely the same relief and protection as the plaintiff, and he cannot have all of the net rents in the hands of the receiver to the exclusion of his brother equally entitled to his proportionate share.
The order of the County Court of Kings county is reversed, with ten dollars costs and disbursements, and the motion of the plaintiff for the appointment of a receiver is denied, with ten dollars costs.
JENKS, P.J., MILLS, BLACKMAR and KELLY, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion of plaintiff for the appointment of a receiver denied, with ten dollars costs.