
    Anna Woerishoffer, Respondent, v. Sydney W. Peoples, Appellant, Impleaded with Others.
    First Department,
    June 28, 1907.
    Foreclosure — receiver of rents and profits — notice of application for receiver.
    Although the court has jurisdiction to appoint a receiver of rents and profits pending the foreclosure of a mortgage without notice to the defendant, the appointment should not be made without notice when the mortgage contains a provision that the mortgagee may have such receiver appointed on giving ten days’ notice to the mortgagor, unless it be' shown that the plaintiff was unable to give the notice or would be prejudiced by the necessary delay.
    In determining whether the receiver should be appointed without notice, the court should take into consideration the provision of the mortgage requiring notice.
    Ingraham, J., dissented, with opinion.
    Appeal by the defendant, Sydney W. Peoples, 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 20th day of February, 1907, denying his motion to vacate a prior order granted ex parte which appointed a receiver of rents and profits pendente lite.
    
    
      J. W. Purdy, Jr., for the appellant.
    
      Langdon P. Marvin, for the respondent.
   Laughlin, J.:

The action is brought to foreclose-a mortgage upon the fee of the premises Ho. 39 Lispenard street and Mo. 332 Canal street, and upon a leasehold interest in premises Ho. 41 Lispenard street. The mortgage was not due. It fell due on the 5th day of July, 1906. The amount due and unpaid at that time was $80,000, together Avith interest from the 4th day of December,. 1905, at the rate of four and one-half per centum per annum. The mortgage contained a clause with respect to the appointment of a receiver on ten days’ notice to the mortgagor, as follows: “And it is hereby further covenanted and agreed that the said party of the second part, her legal representatives or assigns, shall be at liberty immediately after any default in any of the conditions of said Bond and .Mortgage, ■upon a Complaint, filed,, or any other proper legal proceedings commenced for foreclosure of this mortgage, .to' apply for, and shall be entitled as a matter of right and without regard to the- value of the premises above described, or the solvency or insolvency of the party of the first part or of any owner of said premises, and on ten days' notice to the party of the first part, liis heirs or. assigns, to tlie appointment by any competent court or tribunal of a receiver of the. rents, issues and profits of said premises, with the power to lease said premises for a term to be ■approved by the court, with power' to pay taxes, assessments and water, rents, which are or may become ' liens on said premises, and keep the same insured, and with power to take proceedings. to dispossess tenants and make all necessary repairs,, and with such other repairs as may be deemed necessary, who, after deducting all charges, and expenses attending tlie execution of .said trust as receiver, shall apply the residue of the said ■ rents and profits to the payment and satisfaction of this mortgage, and the bond accompanying the same, or to any deficiency which may arise after applying the proceeds of the sale of said premises to the amount diie, including interesf and costs and' expenses of the ■foreclosure sale.”

Subsequent to the execution of the mortgage, by mesne conveyances, the title vested in the appellant, who resides in the city of Philadelphia, Penn. The summons and. complaint were personally served upon'him there pursuant to an order for service by publication, and without the State, on the 17th day of Hovember, 1,906. The plaintiff, at the time the. motion for the appointment of a receiver was made, knew the address of the appellant and made no effort to serve notice of the motion upon him. Ho facts or circumstances are shown indicating that- plaintiff would have been prejudiced by the delay incident to giving the notice required by the mortgage. ■ The plaintiff proceeded- in disregard' of the clause in the mortgage, and relies, upon the general jurisdiction of the court to appoint a receiver of rents and profits, in an action to foreclose a mortgage, regardless of any express contract between the parties. The court has-such jurisdiction, and doubtless'may appoint a receiver-without notice,.notwithstanding the fact that tlie parties have stipulated that notice • should be given; but where, as here, the parties have agreed that notice should be given, some facts or circumstances should be presented tending to show either inability to give-the notice, or that the plaintiff .will be prejudiced by the delay incidental thereto. Here, as already observed, the moving papers neither showed inability to give the notice, nor that the plaintiff would be prejudiced by delaying the appointment of the receiver for the period necessary to give the notice. The plaintiff merely showed that during the month of September, 1906, one of his attorneys was informed by the agents for the owner that they had on hand several hundred dollars, a balance of rents collected from the premises, but were instructed by their principal to pay no further taxes or ground rent or interest on the mortgage; that, the ground rent of the premises was $1,650 per annum, and the aggregate of rentals received was $8,410 per annum) that she has been obliged to pay $687 for ground .rent which fell due in September, 1906-; that taxes on the premises for the year 1905, aggregating $1,356.36, and for 1906, aggregating $1,345.79, remain unpaid; that the valuel of the premises lias been constantly deteriorating since the1 mortgage was executed, and in the judgment of a real estate broker who examined the same, the mortgaged premises were not worth more than the sum of $75,000. The affidavits on which the motion to vacate the order was made show that the security is' ample, but I think the decision of the appeal should not be based upon that ground.

Respondent relies upon section 714 of the Code of Civil Procedure. That section expressly requires notice of motion -to appoint a receiver, unless -the adverse party has failed to appear in the action and the time limited for his appearance has expired, unless an. order for service by publication, or without the State, has been made, in which case the court may, in its discretion, appoint a temporary receiver with or without notice, unless the mortgage expressly provides that a receiver may be appointed without notice, in which, event notice in all cases may be dispensed with. It lias been held by this court under that section that where an order ■ for service, by publication has not been granted, the appointment of a receiver ex parte is absolutely void. (Dazian v. Meyer, 66 App. Div. 575.) As the court will not appoint a receiver merely because the mortgagor by a clause-in the mortgage has consented-thereto, hut will take that fact into consideration with the other evidence presented in deciding how to exercise its discretion (Eidlitz v. Lancaster, 40 App. Div. 446; New York Building Loan Co. v. Begly, 75 id. 308), so I think the court should take the contract concerning notice into consideration in. deciding whether to exercise its jurisdiction without notice which apparently was not done here. While conceding the jurisdiction of the court to appoint a receiver without notice, notwithstanding the contract, yet I am of opinion that the contract should not be altogether .ignored, and that in the absence of evi-' dence tending to show inability to give the notice or prejudice" by the deláy incident thereto, the court was riot warranted in appointing the receiver.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion to vacate the order appointing the - receiver granted, with ten dollars Costs.

McLaughlin, Clarke and Scott, JJ., concurred; Ingraham, J,, dissented. . ' ■ •

Ingraham, J. (dissenting):

I dissent. I think the court had power to appoint the receiver where it appeared that the defendant was a non-resident and had expressly instructed his representatives not to pay any ground rent, taxes or interest on the mortgaged premises., A large amount of ground rent,and taxes was due for which no provision was made and the whole interest of the mortgagor and mortgagee'-in the premises was jeopardized by the failure to pay the ground rent and taxes. If the defendant had been within this State where notice could have been served the proposition would have- been different, but under this covenant I think, there was nothing to justify the inference that when the owner' of the property departed from this State he would have to be followed and. served before a receiver could- be appointed. The provision as to service of notice had reference to a notice that could- be served within the jurisdiction of the court and the defendant by departing from the jurisdiction of the court rendered nugatory that provision.

I think a proper case was made, for the exercise of the discretion •of the court.; that the'appointment was regular,' and the- order should be affirmed.

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