
    Frederick P. Forster, Resp’t, v. Elizabeth Moore, Impl’d, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November, 17, 1893.)
    
    Receiver—Mortgage foreclosure.
    After the vacation of the appointment of a temporary receiver in fore closure proceedings, the court may, instead of directing the rents to he paid to the mortgagor, order the receiver to apply them first to the payment of interest on prior mortgages.
    Appeal from an order denying the motion of the mortgagor to compel the receiver to pay over to her rents collected by him.
    
      Robert J. Robeson, for app’lt; Forster & Spier, for resp’t.
   Per Curiam.

This action was begun in February, 1893 (the precise date not appearing), for the foreclosure of a third mortgage on real estate, and on the 27th of that month an order was made directing that the appellant be served by publication; and on the same day James L. McNeirny was appointed temporary receiver, pursuant to § 714 of the Code of Civil Procedure. The summons and complaint were personally served on the defendant’s husband March 3, 1893, seven days after the order of publication was made, and on the appellant March 29, 1893. On the 14th of April, 1893, the order authorizing service by publication, and the order appointing the receiver, were vacated by the general term. Foster v. Moore, 68 Hun, 526 ; 52 St. Rep., 662. The order appointing the receiver is not a part of the record, nor are its terms disclosed. Prior to April 21, 1893, the receiver collected rents to the amount of $631.20, and had expended $128.55. On the 21st of April, 1893, a motion was heard in behalf of the plaintiff, asking that McNeirny be appointed receiver, and that he be allowed to retain the moneys collected under the prior order.

On the same day a motion in behalf of the appellant was heard, asking that the moneys collected by the receiver be paid over to her. In one of the appellant’s moving affidavits it is averred: The defendants Moore have both answered the complaint herein, denying the making of the alleged bond and mortgage described in the complaint, upon which this action is brought, and deponent will use said pleadings on this motion.” The pleadings are not in the record. It is stated in an affidavit made by the defendant’s husband, on which the appellant’s motion was heard, “ that the interest on the first mortgages on said premises is due on May 1, 1893, and deponent’s wife wishes to use. the money which said MdNeirny collected for the purpose of paying said interest, which is about $500.” The mortgaged property is a flat heated by steam, and occupied by tenants. The plaintiff’s motion for the appointment of a receiver was granted, and the receiver was ordered “ to keep said premises in repair; to pay for gas, coal, also the taxes, assessments, water rates, and interest on prior mortgages upon said premises.” The appellant’s motion was denied. Instead of the matter in controversy being disposed of by a single order, two were entered; one granting the plaintiff’s motion, and the other denying the appellant’s. From the latter order Mrs. Moore has appealed. It is evident that the court directed that the rents be applied on the prior mortgages because the validity of the mortgage in suit was contested, and because Mrs. Moore, in her moving papers, stated that she wished so to apply the rents.

If the court should reverse the order appealed from, and grant the motion, the order appointing the receiver would be left standing, and there would be conflicting orders. It appears that the bond accompanying the mortgage in suit contains a clause that the mortgagee, in case of foreclosure, may take the rents by the aid of a receiver, but neither the bond nor mortgage is in the record; and we think, under a record which does not clearly disclose the rights of the parties, that we ought not to order the rents to be paid to the mortgagor. The order of the court directs the moneys to be applied precisely as the mortgagor stated in her moving papers that she desired to apply them, except the receiver is authorized to apply them in payment of taxes, assessments, water rates, and current expenses. If the moneys collected by the receiver are applied on the prior mortgages, the desire of the mortgagor will be effected, and the rights of all parties will be protected pending the litigation. The order appealed from should be modified by directing that the receiver apply all moneys collected by him under the first order in payment of any sums due on the prior mortgages, and as so modified affirmed, without costs to either party.  