Baier v. Kelley

Decided July 15, 1907

New York Supreme Court · decided 1907-07-15

<p>Receivers — Nature, grounds and subject A receivership — Particular actions and proceedings — Foreclosure of mortgages on land — Under receiver clause.</p> <p>The receivership clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver, but it must also appear that the parties in possession are in receipt of income and fail to pay taxes and interest on prior liens and that there is doubt whether the security is adequate.</p>

Cited by 1 later decisions — most recently November 1932

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1907-07-15

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Dayton, J.

¶1The papers fail to show that the property is inadequate to secure plaintiff’s mortgage. Indeed, I think the contrary is shown. The receivership clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver. See Thomas v. Davis, 90 App. Div. 1, where the court says: “ The general rule, as I understand it, is, when a mortgage contains such a provision, and it further appears, as here, that the mortgage sought to be foreclosed is a second mortgage, that the parties in possession refuse to pay the interest and taxes, are receiving the rents, and that there" is doubt as to whether the security is adequate, that a receiver will be appointed.”

¶2Motion granted.