Opinion
March 12, 1937.
Appeal from Supreme Court of Kings County.
Robert E. Mebel [ Arthur S. Mebel with him on the brief], for the appellant.
Francis V. Hurley, for the receiver-respondent.
This is an action to foreclose a mortgage upon real property. The respondent was duly appointed receiver of the rents, issues and profits of the mortgaged premises on July 24, 1936, but did not qualify until August 11, 1936, before which date he was not entitled to collect rents due and unpaid. ( Smith v. Nannen, No. 2, 231 App. Div. 236; Brewster v. Brewster Co., 145 id. 812.) The appellant, second mortgagee, under an assignment of the rents from the owner, collected the rent due August 1, 1936, from the tenant Castignetta, but not that due on the same date from the tenant Gordon. Appellant was within her rights in retaining as against the receiver, who had not then qualified, the Castignetta rent. The plaintiff has, and hence the receiver has, a first lien upon the Gordon rent unpaid, and is entitled to collect it. ( N.Y. Life Ins. Co. v. Fulton Development Corp., 265 N.Y. 348.) Appellant, although claiming to appear specially upon the motion resulting in the order from which the appeal is taken, disputed the merits of that motion as asserted by the receiver, and, therefore, is estopped from denying the jurisdiction of the court over her person, having become an actor in the suit by her participation therein. ( Henderson v. Henderson, 247 N.Y. 428.)
The order fixing rents should be modified (1) by striking therefrom the direction that appellant turn over to the receiver all rents collected since the commencement of the receivership, July 24, 1936; (2) by striking from the second ordering paragraph the words "Sam. Castignetta 2nd floor August 1st" and inserting in lieu thereof the words "Sam. Castignetta 2nd floor September 1st." As so modified, the order in so far as an appeal is taken, should be affirmed, without costs.
LAZANSKY, P.J., HAGARTY, CARSWELL, ADEL and TAYLOR, JJ., concur.
Order fixing rents modified by striking therefrom the direction that appellant turn over to the receiver all rents collected since the commencement of the receivership, July 24, 1936, and by striking from the second ordering paragraph the words "Sam. Castignetta 2nd floor August 1st," and inserting in lieu thereof the words "Sam. Castignetta 2nd floor September 1st." As so modified, the order, in so far as an appeal is taken, is affirmed, without costs.