St. Paul Hotel Co. v. Segrave

MacLean, J. That the defendant expressly agreed to collect outstanding accounts of the plaintiff, when, as receiver, he took possession of certain mortgaged premises in the foreclosure action of Derby v. Brandt, is disputed, with evidence sufficient, if credited, to support a finding to that effect; but such a finding is not essential, in view of the fact that it is undisputed that he collected a sum certain of such accounts and was entitled to certain deductions therefrom. He thus became liable to the plaintiff for the latter’s moneys collected (Schanz v. Martin, 37 Misc. Rep. 492), not as receiver; for although by the order of his appointment he was “ directed to demand, collect and receive from the tenant or tenants in possession of said premises or other persons liable therefor, all the rents therefor now due and unpaid, or hereafter to become due,” it does not appear that the plaintiff was indebted for rent when the defendant, as receiver, took possession, and the moneys collected from the lodgers of the plaintiff, were due and owing prior to that time. Nor does it appear that it later became indebted, for it is undisputed that it surrendered possession pursuant to a. further order in Derby v. Brandt, fixing occupation rental, or that it received notice from the defendant of his appointment, prior to his demand for possession and, thereby, became liable for rent in the interim under the terms of this order. In view of the record herein, it may not be said that the defendant, by virtue of his office or of the directions in said orders contained, was authorized to collect said accounts; much less to retain them when collected. Scott and Gildebsleeve, JJ., concur. Judgment and order affirmed, with costs.