New York Building Loan Banking Company, Appellant, v. Hugh J. Begly, Respondent, Impleaded with Others

New York Building Loan Banking Company, Appellant, v. Hugh J. Begly, Respondent, Impleaded with Others. Receiver of rents of mortgaged premises— the discretion of the Special Term is not controlled by a covenant of the mortgage authorizing his appointment — review of such discretion — effect of the covenant. The appointment of a receiver of the rents and profits cf mortgaged premises, during the pendency of an action to foreclose the mortgage, is discretionary with the court even where the mortgage provides for his appointment, and, in the absence of an improper exercise of discretion, the Appellate Division will not reverse an order denying a motion therefor. The covenant of the parties for the appointment of a receiver pending the action, while not controlling upon the court, may properly be taken into consideration in determining the question whether or not a receiver should he appointed. Appeal by the plaintiff, the New York Building Loan Banking Company, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 1.6th day of August, 1902, and entered in the office of the clerk of the county of Kings, denying the plaintiff’s motion for .the appointment of a receiver of the rents and profits of the mortgaged premises during the pendency of the action. William H. Hamilton, for the appellant. James M. Gray [Herbert T. Keteham and Joseph E. Owens with him on the brief], for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: This is an action for the foreclosure of a second mortgage, and a motion was made by the plaintiff for a receiver of the rents and profits pending the action. This motion was denied, and the plaintiff. appeals to this court. While we might not be disposed to interfere with the order had it granted plaintiff’s motion, we do not think the facts are sufficiently strong to justify this court in overruling the discretion of the court at Special Term. The appointment of a receiver is specially within the equitable jurisdiction of the court, even where, as in the case now before us, the mortgage provides for the appointment of such an officer. (Fletcher v. Krupp, 35 App. Div. 586, 588; Browning v. Sire, 33 Misc. Rep. 503.) In the absence of an improper exercise of .the discretion vested in the court, this court will not reverse an order of the character of that presented in this case. The covenant of the parties is not controlling (Brick v. Hornbeck, 19 Misc. Rep. 218; Eidlitz v. Lancaster, 40 App. Div. 446), but is proper to be taken into consideration in determining the question whether or not a receiver should be appointed. (Eidlitz v. Lancaster, supra.) The matters stated in the moving papers do not show with any certainty that the property covered by the mortgage is not sufficient to satisfy the plaintiff’s claim* and there is no way of determining from the complaint the value of the securities held by the plaintiff, which holds an assignment of 108 shares of class A stock assigned to it by the defendant. The order appealed from should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.