Opinion
April 27, 1933.
Clayton F. Morey, for the plaintiff.
Warren, Shuster, Case Halsey, for the defendant Bray.
Harris, Beach, Folger, Bacon Keating, for the defendant Union Trust Company of Rochester.
"To justify the appointment of a receiver on the application of the mortgagee it must appear that the mortgaged premises are an inadequate security for the debt and that the parties personally liable for the debt are insolvent." ( Finch v. Flanagan, 208 A.D. 251, 254.)
"The burden is always on the applicant to show its necessity. Courts are reluctant to resort to the summary remedy of a receivership, unless the proof clearly warrants such procedure." ( People v. Smith Co., 230 A.D. 268, 275.)
The plaintiff's mortgage is for $9,000. The parties differ as to the value of the premises However, it is not disputed that the gross income from the property is $130 a month, with one apartment vacant. This is a ten per cent return on a valuation of $15,600.
The plaintiff has failed to satisfy me that the property is not worth at least the amount due upon its mortgage, including interest and taxes. Under the circumstances, the court does not feel justified in exercising its discretion to appoint a receiver.
The motion is denied.