Union Bank v. Rubenstein , 138 N.Y.S. 647 ( 1912 )

Giegerich, J.

In addition to the questions considered in the memorandum handed down herewith in action Bo. 1, this case presents the further question of the right of the defendant Suchy, as owner of the mortgaged premises, to require from the plaintiff an accounting of the rents collected by the plaintiff. The defendant Suchy bases her claim to such right upon the fact that the plaintiff never procured the appointment of a receiver and did not record its assignment of the rents made to it by the defendants Stern, who were at the time the owners of the property, until after the defendant Suchy had purchased the premises from the Sterns. Under the facts shown in this case the appointment of a receiver was not necessary to give the plaintiff a right to the rents as against the 'defendant Suchy. The mortgage provided that upon default in the payment of either principal or interest the mortgagee should have the right forthwith to take, possession of the premises and receive the rents. At the time the defendant Suchy received the deed of the property the plaintiff was in possession of the premises and was collecting the rents under this provision of the mortgage. Although the assignment of the rents was not recorded until.after the making of the deed to the defendant Suchy, the plaintiff’s possession of the premises, in connection with the provisions of the mortgage, was nevertheless notice to her of its rights. Raynor v. Timerson, 54 N. Y. 639, 640; Kennedy v. National Union Bank, 23 Hun, 494, 496; Frear v. Sweet, 118 N. Y. 454, 462. Such being the case, I think the defendant Suchy is not entitled to the rents, but that they should be, as they have been, applied toward the payment of the principal and interest of the mortgage. There must, therefore, be a judgment of foreclosure and sale as indicated-in action Ho. 1. Requests for findings should be submitted, with proof of service, within five days after the publication of this memorandum.

Judgment accordingly.