Opinion
October, 1933.
Order reversed on the law and the facts, with ten dollars costs and disbursements, and the motion to fix rent payable by the owner denied, with ten dollars costs. It appears that the mortgaged property in question had been leased by the owner to a tenant who is in possession thereof, and that said lease was made more than two years prior to the appointment of the receiver. The rentals arising on the lease had been assigned to the plaintiff mortgagee. The record discloses no authority for the court at Special Term to fix a sum for reasonable use and occupation to be paid by the owner. ( Prudence Co. v. 160 W. 73rd St. Corp., 260 N.Y. 205; Holmes v. Gravenhorst, 238 App. Div. 313.) Lazansky, P.J., Young, Scudder, Tompkins and Davis, JJ., concur.