Opinion
December 10, 1909.
Harvey C. Price, for the appellant.
Peter Eagan, for the respondent.
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 cases 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 actually 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.
INGRAHAM, McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.