
    Austin B. Fletcher et al., Plaintiffs, v. John McKeon et al., Defendants. Matter of the Application of James A. Robinson, Receiver, Appointed in the Above-entitled Action.
    (Supreme Court, New York Special Term,
    June, 1901.)
    Foreclosure — Kent, as between a receiver of the rents and profits and & tenant who had paid in advance.
    Where a tenant of the whole of mortgaged premises has paid the rent therefor in advance to the mortgagor, a receiver of the rents and profits, appointed under a clause in the mortgage authorizing such appointment on foreclosure, cannot prevent the tenant from collecting the rents of the subtenants during the period of the tenant’s advance payment, and this although the mortgage was recorded before the lease.
    The tenant’s rights are not cut off until the sale in foreclosure and the receiver has no right to rents paid the mortgagor before the receiver’s appointment "
    Application for an injunction.
    Austin B. Fletcher (Joseph M. Lesser, of counsel), for plaintiffs and receiver.
    Ralph Nathan, for lessee.
   Blanchard, J.

This is an application made by a receiver of rents of mortgaged premises, appointed in an action to foreclose the mortgage, to enjoin a defendant claiming to be a tenant .of the entire premises, from collecting the rents of the premises from subtenants and from interfering ■ with the receiver in the collection of these rents. The tenant claims to be in possession of the mortgaged premises by virtue of a lease of the- entire premises, under which he has paid to a former owner ‘of the equity of redemption the rent of said premises in advance for several months and up to August first of the present year.

The receiver contends that he is entitled to the rents of the mortgaged premises as against the lessee, because of the fact that the mortgage under foreclosure was made and recorded prior in time to the lease, and that, therefore, the lessee took subject to all the provisions of the mortgage, including that clause, by virtue of which' the mortgagee is given the right to apply for a receiver of the mortgaged premises in an action brought to foreclose the mortgage. This may be true, and yet the receiver so appointed acquires no rights to the rents paid to the owner of the equity prior to his appointment. The receiver is only entitled to collect such rents as have accrued and have not come into the hands of the owner of the equity of redemption. Wyckoff v. Scofield, 98 N. Y. 475; Rider v. Bagley, 84 id. 461.

The tenant produces his written lease, which acknowledges receipt of the rent of the demised premises for the months of March, April, May, June and July, 1901, and the bona fides of the lease is not attacked on this motion. The case of Hartley v. Meyer, 2 Misc. Rep. 56, while holding that a lessee who has paid rent in advance to the owner of the equity of redemption, does so at his peril, in so far as he is charged with notice that his rights may be cut off by the default of the mortgagor and the foreclosure and sale of the property, but a careful examination of the case discloses that it is not therein held that the lessee’s rights are cut off prior to the judgment of foreclosure and sale. Ho case which goes to that extent has been called to my attention, and I have not been able to find any, and the contrary seems to have been held in Lawrence v. Conlon, 26 Misc. Rep. 44, 46. The motion isj therefore, denied, but in view of the motion having been made pursuant to dicta of mine on a previous motion, without costs.

Motion denied, without costs.  