Olive v. Levy

Full title: FRANK OLIVE, Plaintiff, v . MAX LEVY and Others, Defendants. DAVID J. KATZ…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 12, 1922

201 App. Div. 262 (N.Y. App. Div. 1922)

194 N.Y.S. 88

Opinion

May 12, 1922.

Benjamin Reass [Hugo Hirsh and Emanuel Newman with him on the brief], for the appellants.

Grover M. Moscowitz, for the receiver, respondent.

PER CURIAM:

The mortgage in suit was recorded prior to the execution of the lease and agreements under which the appellants occupy. They are parties to the action. A receiver of the mortgaged premises having been appointed, regardless of any agreement previously made by the landlord, the receiver was entitled to receive and the occupants required to pay the reasonable value of the use and occupation. Even if the tenants had paid the stipulated rent in advance they would be required to pay the receiver for the use and occupation of the premises. ( Fletcher v. McKeon, 71 App. Div. 278; Derby v. Brandt, 99 id. 257.)

The receiver was appointed by order dated October 25, 1921, and was entitled to an order directing the occupants to pay him from that date the amount fixed by the court as the value of the use and occupation. It cannot be said that such an order is wholly unnecessary and not a part of the present procedure. (Rules of Civil Practice, rule 175; Baerlein v. Winter, 103 Misc. Rep. 506; McDonald v. Cohen, 65 id. 489; Henry v. Hirsch, 140 App. Div. 893; Home Life Ins. Co. v. O'Sullivan, 151 id. 535; Public Bank of New York v. London, 159 id. 484; Isaacs v. Greenberg, 145 N.Y. Supp. 921.) The order is well supported by the authorities, but is too broad in its terms.

The order should be so modified as to direct payment of the amount fixed as the reasonable value of the use and occupation of No. 57 Tillary street, Brooklyn, from October 25, 1921, the date of the receiver's appointment, and as thus modified affirmed, without costs.

BLACKMAR, P.J., RICH, JAYCOX, MANNING and KELBY, JJ., concur.

Order so modified as to direct payment of the amount fixed as the reasonable value of the use and occupation of No. 57 Tillary street, Brooklyn, from October 25, 1921, the date of the receiver's appointment, and as thus modified affirmed, without costs.