Order affirmed, without costs, on the opinion at the Appellate Division. Question certified answered in the affirmative.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN and BREITEL. Judges KEATING and JASEN dissent and vote to reverse and to reinstate the order of Special Term in the following memorandum.
KEATING and JASEN, JJ. (dissenting).
Under settled law, a receiver in foreclosure is entitled to all rents, including those due but unpaid at the time of his appointment, which have not been reduced to the possession of the landlord at the time the receiver qualifies. ( New York Life Ins. Co. v. Fulton Development Corp., 265 N.Y. 348; Rider v. Bagley, 84 N.Y. 461.) The facts of this case bring it squarely within this rule.
The rents were deposited into court, pursuant to stipulation, pending the outcome of a proceeding brought under article 7-A of the Real Property Actions and Proceedings Law. The court, however, was not the landlord's agent and, until the clerk was directed by order of the court to turn the money over, the landlord had no possession, actual or constructive, of the funds deposited. The receiver, having been appointed and having qualified prior to the time the landlord obtained possession of the moneys, was entitled to have them applied toward the payment of the mortgage debt and maintenance and repair of the property.
Order affirmed, etc.