
    HOYE v. BRIDGEWATER et al.
    (Supreme Court, Appellate Division, Second Department.
    October 12, 1909.)
    1. Appeal and Error (§ 1008)—Findings of Trial Court—Conclusiveness.
    Where the appellate court cannot say that the findings of the trial court are against the weight of the evidence, or that there is reasonable certainty that the trial court erred, it cannot disturb the findings.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3969; Dec. Dig. § 1008.]
    2. Insane Persons (§ 65) — Mortgagee in Possession — Consent of Mortgagor.
    Where the mortgagor was adjudged insane after the execution of the mortgage, and his committee elected to regard the mortgagee as mortgagee in possession, the mortgagee was properly deemed in possession with the consent of the mortgagor.
    [Ed. Note.—For other cases, see Insane Persons, Dec. Dig. § 65.]
    3. Mortgages (§ 199)—Mortgagee in Possession—Liability.
    In the absence of any agreement by the parties, the receipt of rents and profits by a mortgagee in "possession is not a legal satisfaction, and they must be applied by the judgment of the court in an accounting in satisfaction of the mortgage before the mortgagee is divested of his status; but where the mortgagor in foreclosure pleaded, that the "mortgagee as mortgagee in possession had received the rents of the premises, that the same were sufficient to discharge the obligation, and asked for an accounting, the court could strike a balance between the amount due on the mortgage and the amount chargeable to the mortgagee, and give judgment of foreclosure accordingly.
    [Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 513-525; Dec. Dig. § 199.]
    Appeal from Trial Term, Kings County.
    Action by Stephen M. Hoye against Theresa Bridgewater and her committee. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Argued before HIRSCHBFRG, P. J., and JENKS, GAYNOR, BURR, and RICH, JJ.
    Joseph K. Field, for appellant.
    Charles S. Taber, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   JENKS, J.

In this action of foreclosure the defendants plead that the plaintiff as a mortgagee in possession had received the rents and profits of the premises, that the same were sufficient, or such sum as he could have received therefrom was sufficient, to discharge the ob-. ligation, and asked for an accounting. The plaintiff denied occupation or control in such capacity. The Special Term found against him upon that issue, and struck a balance between the amount due on the mortgage and the amount chargeable to the plaintiff of $6.99, and gave judgment of foreclosure and of sale accordingly. The plaintiff appeals.

As we cannot say that the findings were against the weight of evidence, or that the proofs so clearly made for a contrary result that there is reasonable certainty that the Special Term erred, we cannot disturb its findings. Burt v. Quackenbush, 72 App. Div. 547, 75 N. Y. Supp. 1031, affirmed 175 N. Y. 490, 67 N. E. 1081; Foster v. Bookwalter, 152 N. Y. 166, 46 N. E. 299.

The plaintiff contends that a mortgagee cannot be in possession without consent of the mortgagor. We have no quarrel with that principle. But there is no proof in this case that such possession was against consent, and we cannot say that the inference that it was with consent was unwarranted. The mortgagor was adjudged a lunatic in 1906, about a year after the mortgage was executed. She has by her committee elected to regard the plaintiff as a mortgagee in possession. I think, then, that the point is not well taken. See Wing v. Field, 35 Hun, 617; Thomas on Mortgages (2d Ed.) §§ 235, 239; Lunny v. McClellan, 116 App. Div. 476, 101 N. Y. Supp. 812.

Unless the parties agree, the receipt of rents and profits by a mortgagee in possession is not a legal satisfaction. They must be applied by the judgment of the court in an accounting in satisfaction of. the mortgage before the mortgagee is divested of his status. Hubbell v. Moulson, 53 N. Y. 225, 13 Am. Rep. 519. But in this case the defendant demanded, and the court within its powers has made, such an accounting. The exceptions to the rulings upon evidence have not sufficient merit to affect the judgment of the court, within the rule stated in Townsend v. Bell, 167 N. Y. 470, 60 N. E. 757, De St. Laurent v. Slater, 23 App. Div. 70, 48 N. Y. Supp. 1103, and Prime v. City of Yonkers, 131 App. Div. 110, 115 N. Y. Supp. 309, 310, and like cases.

The judgment is affirmed, with costs. All concur.  