
    Mary S. Guerrier, Plaintiff, v. Angela Coleman and Others, Defendants; William H. Ricketts, as Receiver of the Rents, Profits, etc., Respondent, v. Victor Merrill, Appellant.
    First Department,
    December 10, 1909.
    Contempt—necessary adjudication — excessive fine — costs — refusal to pay rent to receiver.
    An order punishing a defendant for contempt is fatally defective if it do not contain an adjudication that the act of the defendant was calculated to or actually did defeat, impair, impede or prejudice the rights of remedies of the plaintiff as required by section 2281 of the Code of Civil Procedure.
    A fine of $300 for contempt of' court is unauthorized where the moving -papers merely show.a default in payment of $200.
    So, too, it is improper to include motion costs in the fine.
    
      It seems, that a receiver of "rents and profits appointed pending a suit of fore- . closure cannot resort to contempt proceedings to compel a tenant to pay rent ■ as required by an order, but should resort to the remedies available to the landlord whom he represents. Contempt proceedings are available, however, where a person claiming to be lessee of the entire premises collects rents from a sub-tenant in defiance of an order forbidding him to do so, for in such case he interferes with the possession of the court through its receiver. •
    
      Appeal by the defendant, Victor Merrill, 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 21st day of August, 1909. ' :
    
      Harvey C. Price, for the appellant.
    
      Peter Eagan, for the respondent.
   Scott, J. :

This is an appeal from an order adjudging the appellant guilty of contempt and fining him the sum of $300 and $10 costs of motion, and directing that in default of payment of the fine a warrant issue for his arrest and imprisonment. .

In this action to foreclose a mortgage upon real property, one Ricketts was appointed receiver of the rents and profits pendente lite, the order containing the usual clauses directing the tenants to pay rent to the receiver and forbidding them to pay it to-the mortgagor. Among the tenants was the ■ appellant Merrill, who held under a written lease dated April 5, 1909, and running for three years. Demand was made by receiver for the payment of the sum of $200, the rent for the months of June and July. Merrill refused to pay, claiming that he had paid five months’ rent in advance. Summary proceedings to remove him were commenced in the Municipal Court, which were dismissed, and no appeal was taken. The receiver, then, instituted proceedings to punish the appellant for-contempt for non-payment of the rent. The order appealed from is the result. There are several fatal- objections to the order. In the first place, it does not contain the absolutely necessary ■ adjudication that the tenant’s failure to pay the rent was calculated to or actually did defeat,-impair, impede or.prejudice the rights or remedies of the complaining party. (Code Civ. Proc. § 2281; Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 770; Obermeyer & Liebman v. Adisky, 123 App. Div. 272 ; Schweig v. Schweig, No. 2, 122 id. 787.)

In the second place, the defendant is fined $300, whereas the only proof contained in the moving papers showed him to be in default for $200. In the third place, it was improper to include the motion costs in the fine.

These reasons require a reversal of the order. In resting our. • decision upon these grounds we are not to be understood as intimating that a resort to contempt proceedings. is the proper method to collect rent in cáses like the present. The receiver-claims the rent by virtue of a lease made by the owner of the property. He stands in the landlord’s shoes and .has the same remedies in case of non-payment-of rent that the landlord- himself' would have had but for the appointment of the receiver. This does not include the right to collect rent by contempt proceedings. The landlord might have dispossessed the -tenant for non-payment of rent, or might have sued him, and this is what the order appointing the receiver authorized him to do. A different .case is presented when a person'claiming to be the lessee, of. the entire premises collects rent from the sub-tenants in defiance of the order which forbids him to do so. In such cases, the person collecting the rent is deemed to interfere with the possession of the property by the court, and can be compelled to pay to the receiver the rents actu-. ally collected. (Fletcher v. McKeon, 71 App. Div. 278; 74 id. 231; Moore v. Smith, 70 id. 614.) This is a very'different thing' from using contempt proceedings for .the collection of rents due upon a lease. ■ "

The order should be .reversed, with ten dollars costs, and disbursements, and motion denied, with -ten dollars costs.

Ingbaham, McLaughlin, Olabke and Houghton, JJ., concurred.

Order reversed, with fien dollars costs and disbursements, and motion denied, with ten dollars costs.  