Opinion
August, 1900.
Donald B. Toucey, for motion.
Maurice Rapp, for defendant Marcus Nathan, opposed.
It appears affirmatively from the opposing affidavits, without denial by the applicant, that the taxes upon the mortgaged premises have been fully paid; that the interest upon the bond and mortgage in suit was met when last due; that the persons liable for the debt are solvent, and that the premises in question are adequate security. The plaintiff relies solely upon the covenant contained in the mortgage, which virtually mortgages the rents and profits of the premises and permits the appointment of a receiver without regard to the solvency of the mortgagees or the value of the mortgaged premises. While it is true that such provision is entitled to "consideration and weight," it is equally true that "courts of equity will not enforce such provisions in a mortgage where it would be inequitable or unconscionable to do so." Fletcher v. Krupp, 35 A.D. 586; Degener v. Stiles, 6 N.Y.S. 474; Brick v. Hornbeck, 19 Misc. Rep. 218. Under the circumstances disclosed, the appointment of a receiver would involve a disregard of all the equities in the case.
Motion denied, with ten dollars costs.