
    (55 Misc. Rep. 368.)
    BAIER v. KELLEY.
    (Supreme Court, Special Term, New York County.
    July, 1907.)
    Mortgages—Foreclosure—Appointment of Receiver.
    Though a receiver clause in a mortgage does not prima facie entitle the mortgagee to the appointment of a receiver, where it appears that the mortgage is a second mortgage, and that the parties In possession refuse to pay the interest and taxes, are receiving the rents, and' there is a doubt ■whether the security is adequate, a receiver will be appointed.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1374, 1375.]
    Action by Anna M. S. Baier against Hannah E. Kelley. Motion for receiver in action to foreclose mortgage. Granted.
    Charles Foster, for plaintiff.
    Charles S. Clark, for defendant.
   DAYTON, J.

The papers fail to show that the property is inadequate to secure plaintiff’s mortgage. `Indeed, I think the contrary is shown. The receivership clause in a mortgage does nót prima facie entitle the mortgagee to the appointment of a receiver. See Thomas v. Davis, 90 App. Div. 1, 85 N. Y. Supp. 661, where the court says:

“The general rule, as I understand it, is, when a mortgage contains such a provision, and it further appears, as here, that the mortgage sought to be foreclosed is a second mortgage, that the parties in possession refuse to pay the interest and taxes, are receiving the rents, and that there is doubt as to whether the security is adequate, that a receiver will be appointed.”

Motion granted.  