Alexander v. Kelly , 7 N.Y.S.2d 617 ( 1938 )

Smith (Peter P.), J.

The Court of Appeals in Holmes v. Gravenhorst (263 N. Y. 148), relied upon herein by the defendant, has stated that, in the absence of a contrary agreemént entered into between the parties, there is no authority for holding that a mortgagor in possession may be evicted from the mortgaged premises prior to a sale under a judgment of foreclosure and sale. In the instant case, however, it was expressly stipulated under the provisions of the extension agreement that the owner would pay a reasonable rental for the premises in the event of default. The latter covenant clearly contemplates the exception to the general rule enunciated in the Holmes case. Plaintiffs’ motion for a receiver of the rents granted. The order will be settled on notice. Plaintiffs’ motion for summary judgment has been withdrawn.