Browning v. Sire , 68 N.Y.S. 875 ( 1900 )

Blanchard, J.

These are applications for the appointment of a receiver in three actions brought to foreclose three separate second mortgages upon three distinct parcels of property situated in the borough of Manhattan, New York city. The applications are submitted together, as practically the same questions are involved in each application. An answer is interposed in each action by the owner of the equity, in which it is claimed that the mortgage sought to be foreclosed is usurious. The moving affidavits show that a considerable sum is due for interest, unpaid taxes and Groton water rates. Each of the mortgages contains a receivership clause, which states that the plaintiff is entitled to the appointment of a receiver “ as a matter of right and without regard to the value of the premises or the solvency dr insolvency of the mortgagor.” In action No. 1 plaintiff has secured appraisements from ten real estate experts, and in actions Nos. 2 and 3 from nine experts, and defendant submits the opinion of thirteen experts. These opinions differ widely and they are impossible to reconcile. I have reached the conclusion, taking into consideration that this is a second mortgage, that interest, taxes and water rates to a considerable amount remain unpaid, that the defense of usury is set up in the answers and that the parties have agreed in the mortgages to the appointment of a receiver of rents in just this case; that the motions should be granted. Defendant urges that the receivership clause should have no weight, except that otherwise a proper case is made out by plaintiff. Under the authorities, however, it is entitled to some weight and should be taken into consideration with the other facts of the case. Keogh Mfg. Co. v. Whiston, 26 Abb. N. C. 358, 359; Fletcher v. Krupp, 35 App. Div. 588; Eidlitz v. Lancaster, 40 id. 446, 447. These applications rest in the discretion of the court, and I am of the opinion that in these cases the security of plaintiff’s mortgages is at least doubtful, and that these motions should be granted. Browning v. Stacey, 52 App. Div. 627. Ten dollars costs on each motion to plaintiff, to abide the event.

Motions granted, ten dollars costs on each motion to abide event.