Summary
In Rider v. Bagley (84 N.Y. 461) it was held that whether a receiver should be appointed in a mortgage foreclosure case rested in the discretion of the Supreme Court; and it was further held in that case that, until the receiver was appointed, the owner of the equity of redemption "had the right to receive the rents, and could not be compelled to account for them."
Summary of this case from Matter of Busch Brewing Co.Opinion
Argued March 1, 1881
Decided March 8, 1881
J.A. Griswold for appellant. J.A. Hallock for respondent.
The plaintiff did not have a strict legal right to the appointment of a receiver. Whether a receiver should be appointed rested in the discretion of the Supreme Court. ( Syracuse Bank v. Tallman, 31 Barb. 201.) Assuming that that court had the power to compel Bagley to pay the rents to the receiver after he was appointed, it was not obliged to exercise the power. Whether it should exercise the power was just as much in its discretion as the appointment of the receiver. But until the receiver was appointed, Bagley, as the owner of the equity of redemption, standing in the place of the mortgagor, had the right to receive the rents and could not be compelled to account for them. By the appointment of the receiver the plaintiff obtained an equitable lien upon the unpaid rents, and upon them only. ( Lofsky v. Maujer, 3 Sandf. Ch. 69; Howell v. Ripley, 10 Pai. 43; Astor v. Turner, 11 id. 436; Mitchell v. Bartlett, 51 N.Y. 447; Argall v. Pitts, 78 id. 242.)
It matters not that here the rents were received by Bagley during the pendency of the motion for the receiver. It is enough that they were received before the receiver was actually appointed and before plaintiff's equitable lien upon them had attached. If Bagley was guilty of any fraud or contempt upon the Supreme Court in taking the rents while he knew the application for a receiver was pending, it was for that court to deal with such fraud or contempt, and its action in respect thereto is not subject to our review.
The order appealed from should, therefore, be affirmed with costs.
All concur, except RAPALLO, J., absent.
Order affirmed.