
    James Thomson et al., Respondents, v. James M. Erskine, Appellant.
    (Supreme Court, Appellate Term,
    October, 1901.)
    ¡Landlord and tenant — Covenant, in a bond, that the mortgagor will on default assign the rents to the mortgagees — Effect of a preceding provision as to a receiver.
    A mortgagor may lawfully agree, in his bond, to assign the rents of the mortgaged premises to the mortgagees — the assignment to become operative in case the mortgagor defaults in the payment of principal and interest; and where such default occurs while the mortgagor is in possession the mortgagees, upon notifying the tenant of the assignment, may recover of him the rent which accrued after service of the notice.
    A preceding provision, in both the bond and the mortgage, authorizing the appointment of a receiver does not affect the validity of a prior assignment of the rents nor show that the parties intended that the receiver, if appointed, should take them as against the mortgagees.
    Appeal by the defendant from a judgment in favor of the plaintiffs, rendered by the Municipal Court of the city of New York, tenth district, borough of Manhattan.
    
      Marshall, Moran & Williams, for appellant.
    Phillips & Avery, for respondents.
   McAdam, J.

The plaintiffs, mortgagees of real property in the city of New York, sued the defendant, tenant of the mortgagor, to recover two months’ rent, on the theory of an assignment of the rent to the plaintiffs by the mortgagor. The facts are conceded. The mortgagor still owns the property. The alleged assignment is contained in the bond given by the mortgagor to the plaintiffs; and, by its terms, was to become operative upon default in the payment of principal or interest. Subsequent to the mortgagor’s default, the plaintiffs notified the defendant of the assignment, and the recovery is for rent accruing after the service of the notice.

We see no reason why a mortgagor may "not, if he so desires, agree with his mortgagee, and so stipulate in the bond, to assign the rents of the mortgaged property, in the event of his default. Modus et conventio vincunt legem. The fact that the bond and mortgage also authorize the appointment of a receiver does not affect the assignment. And the appellant’s contention that, because the assignment immediately follows the provision for the appointment of a receiver, the parties contemplated that the rents would on his appointment be assigned to him is not tenable. A receiver does not need an assignment of the rents which he is appointed to receive; and a prior assignee of the rents would have a superior title. Harris v. Taylor, 35 App. Div. 462. The power of the mortgagor to make the assignment is undoubted. Moffatt v. Smith, 4 N. Y. 126; Riley v. Sexton, 32 Hun, 245; Morris v. Niles, 12 Abb. Pr. 103.

The judgment must, therefore, be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  