
    Stephen M. Hoye, Appellant, v. Theresa or Teresa Bridgewater and Leone D. Howell, as Committee of the Person and Estate of Theresa or Teresa Bridgewater, Respondents.
    Second Department,
    October 12, 1909.
    Appeal — findings by Special Term—mortgage — mortgagee in possession— election by committee of incompetent mortgagor — foreclosure — accounting for rents received.
    The Appellate Division will not disturb findings of fact made by the Special Term unless they are against the weight of evidence, or the proofs so clearly made for a contrary result that there is a reasonable certainty of error by the court below.
    A mortgagee of lands cannot, without the consent of the mortgagor, he deemed a mortgagee in possession.
    The committee of an insane mortgagor may elect to regard the mortgagee as a mortgagee in possession.
    Unless the parties so agree, the receipt of rents and profits by a mortgagee in possession is not a legal satisfaction; they must he applied by a judgment of the court in an accounting in satisfaction of the mortgage before the mortgagee is divested of his status.
    Where a mortgagor sued on foreclosure demands such accounting by a mortgagee in possession, the court has power to strike a balance between the amount due on the mortgage and the rents and profits chargeable to the mortgagee.
    Appeal by the plaintiff, Stephen M. Hoye, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 15th day of January, ■ 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Joseph K. Field [Stephen M. Hoye with him on the brief], for the appellant.
    
      Charles S. Taber, for the respondents.
   Jenks, J.:

In this action of foreclosure the defendants plead that the plaintiff as 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 obligation, 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; affd., 175 N. Y. 490; Foster v. Bookwalter, 152 id. 166.)

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 Mort. [2d ed.] §§ 235, 239; Lunny v. MeClellan, 116 App. Div. 476.)

Unless the parties agree, the receipts of rents and profits by a mortgagee in possession are 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.) But in this case the defendants 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); de St. Laurent v. Slater (23 App. Div. 70), and Prime v. City of Yonkers (131 id. 114), and like cases.

The judgment is affirmed, with costs.

Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.

Judgment affirmed, with costs.  