
    Elizabeth Logan, Respondent, v. Andrew Logan, Appellant.
    First Department,
    May 8, 1908.
    Husband and wife — divorce — alimony — security—receiver.
    Where one ordered by a decree of divorce to pay alimony and give security for the same has regularly paid the alimony and given the security required, the court has no power to appoint a receiver of the rents and profits of his real estate under section 1772 of the Code of Civil Procedure.
    Appeal by the defendant, Andrew Logan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1908, as amended, appointing a receiver of certain real property owned by the defendant.
    
      George H. Taylor, Jr., of counsel [Apell & Taylor, attorneys], for the appellant.
    
      Charles De Hart Brower, for the respondent.
   Per Curiam :

The plaintiff has obtained an interlocutory judgment of divorce wherein and whereby it was provided that the defendant should pay to the plaintiff fifteen dollars per week alimony, execute and deliver to the Title Guarantee and Trust Company, as trustee, as security for the payment of the said alimony, a mortgage upon certain premises in the city of New York, which should contain the usual tax clause, default iqion payment of interest on former mortgages clause, and a clause for fire insurance to the amount $6,000. The defendant has complied with every one of the terms so provided. He has regularly paid the alimony at the times required, he has executed the mortgage and procured a policy of fire insurance in the sum stated. Without default in any respect upon his part, an order has been made appointing a receiver of the rents and profits of said real estate who was directed to take possession of said real estate, and hold the same until the further order of the court.

We find no authority for said order. Section 1772 of the Code of Civil Procedure provides that, Where a judgment * * * requires a husband to provide * * * for the support of his wife, the court may, in its discretion, also direct him to give reasonable security, in such a manner, and within such a time, as it thinks proper, for the payment, from time to time, of the sums of money required for that purpose. If he fails to give the security, or to make any payment required by the terms of such a judgment or order, whether he has or has not given security therefor; or to pay any sum of money which he is required to pay by an order, made as prescribed in section seventeen hundred and sixty-nine of this act; the court may cause his personal property, and the rents and profits of his real property, to be sequestered, and may appoint a receiver thereof.”

The power to appoint a receiver is expressly contingent upon the failure of the defendant to comply with the requirements of the judgment. As it affirmatively appears that there has been no such failure, the application for this order should not have been granted.

It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the application denied, with ten dollars costs.

Present — Ingraham, McLaughlin, Laughlin, . Clarke and Scott, JJ".

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  