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Thomson v. Erskine

Supreme Court, Appellate Term
Oct 1, 1901
36 Misc. 202 (N.Y. App. Term 1901)

Summary

In Thomson v. Erskine, 36 Misc. 202, the Appellate Term held that an assignment of rents, to become operative in case the mortgagor should default in payment of principal or interest, was valid and that the mortgagee, to whom such an assignment had been made in the bond, was entitled after such default to recover from the tenants of the premises the rents accruing subsequently to the default and notice to the tenant of the assignment.

Summary of this case from State Bank v. Cohen

Opinion

October, 1901.

Marshall, Moran Williams, for appellant.

Phillips Avery, for respondents.


The plaintiffs, mortgagees of real property in the city of New York, sued the defendant, tenant of the mortgagor, to recover two months' rent, on the theory of an assignment of the rent to the plaintiffs by the mortgagor. The facts are conceded. The mortgagor still owns the property. The alleged assignment is contained in the bond given by the mortgagor to the plaintiffs; and, by its terms, was to become operative upon default in the payment of principal or interest. Subsequent to the mortgagor's default, the plaintiffs notified the defendant of the assignment, and the recovery is for rent accruing after the service of the notice.

We see no reason why a mortgagor may not, if he so desires, agree with his mortgagee, and so stipulate in the bond, to assign the rents of the mortgaged property, in the event of his default. Modus et conventio vincunt legem. The fact that the bond and mortgage also authorize the appointment of a receiver does not affect the assignment. And the appellant's contention that, because the assignment immediately follows the provision for the appointment of a receiver, the parties contemplated that the rents would on his appointment be assigned to him is not tenable. A receiver does not need an assignment of the rents which he is appointed to receive; and a prior assignee of the rents would have a superior title. Harris v. Taylor, 35 A.D. 462. The power of the mortgagor to make the assignment is undoubted. Moffatt v. Smith, 4 N.Y. 126; Riley v. Sexton, 32 Hun, 245; Morris v. Niles, 12 Abb. Pr. 103.

The judgment must, therefore, be affirmed, with costs.

FREEDMAN, P.J., and GILDERSLEEVE, J., concur.

Judgment affirmed, with costs.


Summaries of

Thomson v. Erskine

Supreme Court, Appellate Term
Oct 1, 1901
36 Misc. 202 (N.Y. App. Term 1901)

In Thomson v. Erskine, 36 Misc. 202, the Appellate Term held that an assignment of rents, to become operative in case the mortgagor should default in payment of principal or interest, was valid and that the mortgagee, to whom such an assignment had been made in the bond, was entitled after such default to recover from the tenants of the premises the rents accruing subsequently to the default and notice to the tenant of the assignment.

Summary of this case from State Bank v. Cohen
Case details for

Thomson v. Erskine

Case Details

Full title:JAMES THOMSON et al., Respondents, v . JAMES M. ERSKINE, Appellant

Court:Supreme Court, Appellate Term

Date published: Oct 1, 1901

Citations

36 Misc. 202 (N.Y. App. Term 1901)
73 N.Y.S. 166

Citing Cases

Stanton v. Metro. Lumber Co.

As the rents accrued, after the default, the ownership was in the assignee; the title was never in the…

Wiggins v. Freeman

Hence, that authority has no application to the present situation. Nor has the case of Thomson v. Erskine (…