#### Franklyn Lawrence, as Receiver, Etc., Plaintiff, *v.*John J. Conlon et al., Defendants.

(Supreme Court, New York Special Term,

January, 1899.)

Contempt — Refusal of vendor, remaining in possession of mortgaged premises, to surrender to a receiver of the rents and profits.

Upon a sale in November 1898, of premises subject to a mortgage, it was agreed that the vendee should assume the mortgage and, as ¡he could not pay all the purchase price, he agreed, in order to pay the vendor the balance, that the latter might occupy until May 1, 1899, and that he should be credited with rent paid in full to that date. In December 1898, a receiver *pendente lite*was appointed in an action to foreclose the mortgage and he demanded possession which was refused.

Held, that the contract between the vendor and vendee was valid,. that the vendor was entitled to retain possession until May 1, 1899, that the receiver’s lien on the rents did not attach until his appointment, and, that the court would not punish the vendor as for a contempt in refusing to .surrender possession to the receiver.

Motion to punish defendant Sigismund Marks for a contempt of court.

Thaddeus D. Kenneson, for motion.

Edward Browne, opposed.

Gildersleeve, J.

This is a motion to punish the defendant Marks for contempt of court. The action is to foreclose a mortgage. It appears from the affidavits handed up on this motion that on November 18, 1898, the said Marks and wife conveyed the premises No. 10 West One Hundred and Fourteenth street to the defendant Zoeller, who agreed to pay $15,000 therefor and assume a mortgage of $12,000. On the closing of the title on said November 18th, it was contracted between the parties, i. e., Zoeller and Marks, that in lieu of the sum of $350, due on the purchase price, the said Zoeller would give Marks a lease of the premises until May 1, 1899, and would credit Marks with payment of the rent in full for said premises up to May 1, 1899. Accordingly,1 *45Marks continued in the occupation of the premises. On or about December 19, 1898, nearly a month after the sale to Zoeller and the lease to Marks, this action was brought to foreclose the mortgage, and both Zoeller and Marks were made parties defendant. On December 30, 1898, an order was entered appointing a receiver of said premises, which order provided, among other things, that the receiver shall receive all rents, etc., due or to become due until his discharge; that he is authorized to prosecute suits to recover possession of the premises, or any part thereof, or for the collection of rent, and to institute summary proceedings for the removal of any tenant or other person from said premises. The order also provides that all persons are required to pay over to the receiver rents due, or which may become due, for said premises; and all parties to this action are enjoined and restrained from interfering with or obstructing the receiver, or causing anything to be done which may tend to interfere or obstruct the carrying out of his duties as such receiver. On December 31, 1898, the receiver duly qualified, and on the same day, a certified copy of the order was exhibited to Marks. On January 11, 1899, the receiver made a demand upon Marks for the possession and surrender of the premises, and served on him a copy of the order of receivership. Marks, however, refused to vacate the premises, and also refused to pay any rent for the same to the receiver. The receiver now makes a motion to punish Marks for contempt, by reason of his interfering and obstructing the receiver in the carrying out of his duties as such receiver, in violation of the injunction contained in the order. Marks, however, denies that he is in contempt, and he claims that no rent is due from him, nor will any become due until May 1, 1899, by reason of his contract of lease with the owner, Zoeller, prior to the appointment of the receiver, or even to the commencement of this action in foreclosure. Ele further claims that he has a perfect right to continue in the occupancy of the premises until May 1, 1899. The receiver does not appear to have instituted any proceedings to eject Marks, or to collect rent from him, other than this motion to punish him for a contempt and for a writ of assistance directing the sheriff to evict Marks. In the case of Wyckoff v. Scofield, 98 N. Y. 475, the court of last resort held that a mortgagee has no claim, as such, to the rents and profits of the mortgaged premises; and while, in a proper case, he may, upon suit for foreclosure, have a receiver of the rents and profits appointed, who will be entitled to collect and receive such rents as *46-have theretofore accrued, but have not yet come to the hands of the owner of the equity of redemption, and apply them to the payment of the mortgage debt; still, the court has no power to order rents, ■already collected and in possession of the owner, to be paid over and thus applied The lien of the mortgagee, or of the receiver, upon the rents dates only from the appointment of the receiver; and the right of the receiver to collect rents extends only to such as áre unpaid at the time of his appointment. Wyckoff v. Scofield, *supra.*In the present case, the arrangement between the owner of the equity of redemption, Zoeller, and Marks was entered into a considerable time before the appointment of the receiver, and before the foreclosure suit was commenced. The lease to May 1st was part of the purchase price on the sale of the property irom Marks to Zoeller, and I can find no authority for depriving Marks -of his rights thereto. It is not claimed that there was any fraud or collusion between Marks and Zoeller, and there is no reason for not believing that it was a plain, straightforward and *T>ona fide*contract. The receiver cannot turn Marks out for nonpayment of rent that had been paid, without fraud or collusion, before the ••appointment of the receiver. See Sea Insurance Co. v. Stebbins, 8 Paige, 565; Argall v. Pitts, 78 N. Y. 239; Rider v. Bagley, 84 id. 461; Wyckoff v. Scofield, 98 id. 475.

This motion must be denied, with $10 costs.

Motion denied, with $10 costs