
    Fifty-Ninth Street Real Estate Company, Respondent, v. Francis P. Murphy, Individually, and as Receiver of the Rents and Profits of Property No. 344 West Seventy-second Street, New York City, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1916.)
    Foreclosure — mortgages — to what receiver of rents, etc., entitled — contracts.
    The receiver of the rents, issues and profits under a foreclosure of a mortgage on an apartment house is not entitled as against the mortgagor to telephone tolls collected from the tenants for messages sent to the exchange located in the building, as the money so received was not earned by the real estate • but under a contract with the telephone company.
    Such receiver is, however, entitled as against the mortgagor to the amount collected for electric current furnished to the tenant from a plant which was a part of the realty.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.
    Gabriel L. Hess, for appellant.
    Bennett E. Siegelstein (William L. Stone, of counsel), for respondent.
   Guy, J.

This action was brought to recover from the defendant who is the receiver of the rents, issues and profits, under a foreclosure of a mortgage upon an apartment house known as the Chatsworth ” in this city, the sum of $255.52, being the amount collected by the defendant from the tenants of said house for electric current furnished them.

The facts are not disputed. The plaintiff is the owner of the equity of redemption — the record owner of the premises.

The electric current furnished the tenants was manufactured on the premises, by a plant maintained thereon and a part thereof. The defendant, as receiver, took possession of the premises on April 30, 1915, and the bills for electric light were then due. Plaintiff rests its right to recover from the defendant upon two claims: First, that the electric current so furnished the tenants is not embraced in the terms “ rents, issues and profits ” and therefore the defendant has no right thereto, and, second, that the plaintiff refrained from collecting said bills and allowed the defendant to do so upon his promise to collect the same and turn them over to the plaintiff.

In July, 1915, this plaintiff brought an action against this defendant to recover for telephone tolls collected by him from the several tenants and recovered a judgment therefor which was affirmed upon appeal by this court. Not reported. In December, 1915, in another action between the same parties to recover for sums charged the owners of property adjoining the Chats-worth for electric current, light, telephone service, hot and cold water, etc., the owners of the adjoining property having paid the sum due into court the judgment in favor of the receiver was modified by this court, upon appeal, by deducting the sums charged for tele-phone service and affirmed as to the other charges. Not reported.

In that action it was determined by this court that the plant in the Chatsworth was a part of the realty, and that whatever it produced was within the rents, issues and profits, which the receiver was authorized to collect. The distinction between the two causes of action is clear. The first action was for telephone tolls, the messages being sent through a trunk line, the exchange being located in the Chatsworth, and connections being made through such exchange. This being the case the receiver could not recover such charges, as they were no part of the rents, etc., as the money was not earned by the real estate, hut through a contract with the telephone company.

In the second case, as in the present case, the charges are for commodities furnished directly by the plant, which is part of the realty, and charges for services in this case are, therefore, for the rents, issues and profits ’ ’ arising from the use of such realty. The learned trial justice held that the promise made by the defendant, which was disputed, to collect the said charges and pay them over to the plaintiff, was binding as under the law “ forbearance to assert a legal right is a good foundation for a promise by a third party to pay.” When the record is examined, however, it will be found that this principle is sought to be applied to the following incident. Plaintiff’s secretary testified as follows: “ I told the receiver that I had a.claim against the tenants for electric light furnished * * * and that I intended to render bills to the tenants for those charges, but that if it would cause him any inconvenience and confusion I would let his agent collect them for me if he turned it over. The receiver told me that he thought that would be the best plan * * * and he would see that these amounts were collected and turned over to me when collected. ’ ’ I do not interpret this as evidence of more than an arrangement as to the convenience of the two parties, but if it can be regarded as a contract it is merely one involving the physical collection and turning over of certain funds.

Manifestly the right of the receiver to the fund was not either involved or intended to be determined by the arrangement; moreover, it is equally plain that he undertook no personal obligation in this respect whatever.

Bule and Cohalan, JJ., concur.

Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.  