Opinion
February 21, 1918.
Justin S. Galland, for the appellant.
Max Monfried, for the respondent.
In this foreclosure suit the plaintiff obtained an order for a receiver pendente lite. The owner of the premises appeared specially to move to vacate the order.
The clause in the mortgage pertinent to a receiver did not dispense with notice of the application. The plaintiff neither had served his pleadings upon the owner of the premises, nor had he obtained an order for publication. The letter written by plaintiff's attorney to Mr. Leslie, an attorney, was not equivalent to notice of the application, because the authority of Mr. Leslie to receive notice was not established, and in any event the letter lacked the precision requisite to notice.
We think that the order was void for lack of notice of the application. ( Jarmulowsky v. Rosenbloom, 125 App. Div. 542; Dazian v. Meyer, 66 id. 575; Elias v. Band, 167 id, 940.)
The clause in the mortgage that upon default the mortgagee could enter the premises, take possession thereof and receive the rents and profits for application upon account, does not help the plaintiff, inasmuch as that is a separate and an independent provision intended to confer a different right. ( Sullivan v. Rosson, 166 App. Div. 73.)
If it be said that notice was difficult or even impossible on account of the evasion or the absence of the defendant, the answer is that if an order for publication had been made, the appointment of the receiver could have been made without notice. ( Jarmulowsky v. Rosenbloom, supra, 544, citing Fletcher v. Krupp, 35 App. Div. 586.) Notwithstanding the forceful plea of the appellant, the discretion of the court should not be disturbed upon the facts. ( Fletcher v. Krupp, supra, 588.)
The order of the County Court of Kings county must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order appointing the receiver granted, without costs. But any rents collected by the receiver, less his legal charges thereon, must be paid into court to the credit of the action.
THOMAS, MILLS, RICH and PUTNAM, JJ., concurred.
Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion to vacate the order appointing receiver, granted, without costs. But any rents collected by the receiver, less his legal charges thereon, must be paid into court to the credit of the action.