Title Guarantee & Trust Co. v. Henning, Borheck & Heyser, Inc.

Order fixing rental value of premises under foreclosure and occupied by the owner for business purposes reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to renew upon papers showing waste or the insecurity of the mortgage debt. The record does not disclose that there was any waste by the mortgagor or that the property is insufficient to secure the mortgage debt. There was no assignment of the rents either in the mortgage or otherwise — therefore, no ground is stated upon which the interposition of a court of equity may be invoked to obtain rentals of the property for the benefit of the mortgagee. Lazansky, P. J., Tompkins and Davis, JJ., concur; Scudder and Johnston, JJ., dissent and vote to affirm.