Opinion
January, 1936.
Order granting plaintiff's motion for summary judgment, striking out the answer of defendant Altman and dismissing the counterclaims, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order denying said defendant's motion for an order framing issues to be tried by a jury reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. Appeal from order denying motion for reargument dismissed. In our opinion, the admitted possession of the premises and the acts of dominion over them by the plaintiff were illegal. The assignment of rents clause did not vest the respondent with possession upon default. It was entitled to an assignment of the rents and nothing more. Such relief might have been had by appropriate legal action, had it been denied. The owner was entitled to possession until the time of sale. Inasmuch, however, as the default in the terms of the mortgage is not disputed, the rents in any event belonged to the respondent and damages, if any, resulting from the wrongful withholding of possession and trespass, must be predicated on elements other than the collection of such rents and their application to the reduction of the indebtedness. As the acts of possession and dominion are undisputed there seems to be no necessity for the determination of that issue as one of fact. Young, Hagarty, Carswell, Davis and Johnston, JJ., concur. Settle order framing issues on notice.