#### Albert Hirsch, Plaintiff, *v.*The Twelfth Ward Bank, Defendant.

(Supreme Court, New York Special Term,

February, 1910.)

Corporations — Power of corporations to make contracts and' effect of ultra vires contracts — Mortgages — Consent of stockholders.

An assignment by a corporation, the owner of an equity of redemption in real property, of the rents of such property, to the holder of the third mortgage thereon which was not made by the corporation and the payment of which it has not assumed", in order to prevent a threatened foreclosure of the mortgage, is not in violation of section 2 of the Stock Corporation Law (L. 1892, ch. 688) requiring the assent of stockholders to the execution of a mortgage.

Demurrer to complaint.

W. H. Hirsch, for plaintiff.

A. W. Ashburn, Jr., for defendant.

O’Gorman, J.

The corporation of which the plaintiff is now receiver was seized of the equity in certain real estate, and in order to prevent a threatened foreclosure' suit at the instance of the third mortgagee delivered to -the skid mortgagee an instrument whereby it assigned to the said mortgagee the rents of the premises in question and authorized the said mortgagee to enter into possession thereof. This action is now brought for an accounting on the ground that the said instrument constituted a mortgage and was invalid under section 2 of the Stock Corporation Law, which requires the consent of not less than two-thirds of the capital stock of the corporation to the making of a corporate mortgage, and which act further provides that such mortgage shall be given only to secure the payment of the obligations of the corporation. In my opinion the act has no application. The instrument is nominally an assignment of the rent, but in substance is a permission to the mortgagee to go into possession of the mortgaged premises. While an *291assignment of rents and profits of land as security for a debt is a mode of creating an equitable lien on the land in favor of the assignee, yet equity looks at the final intent and purpose rather than at the form. Pom. Eq. Juris., § 1237. As the land was already security for the debt, to execute an assignment by way of security upon the s.ame land would be a useless proceeding. Some real object must be imputed to the act, and the authorization to the defendant to enter into possession of the premises appears to be the only purpose of the instrument. If the defendant could secure peaceable possession of the premises, it was entitled by law to collect the rents and profits and apply the same upon the mortgage. If peaceable possession could not be secured, the defendant under the circumstances was at liberty to procure the appointment of a receiver to collect the rents for its benefit. The corporation voluntarily permitted what the mortgagee could readily secure by the appointment of a receiver in a foreclosure action. While the corporation neither made nor assumed the payment of the mortgage, and consequently was not liable for the debt, the execution of the instrument in question was manifestly for its benefit and necessary in order to protect its equity in the premises. Disregarding the conclusion of law set forth in the complaint, there are no proper allegations of fraud or want of consideration.

Demurrer sustained, with costs and usual leave.