Guaranty Trust Co. v. Bisjo Realty Corp.

The agreement of the parties as expressed in the trust indenture provided that in the event of any default the trustee shall have the right to immediate possession of all of the mortgaged premises. It further provided that after the commencement of any proceeding to foreclose a receiver may be appointed, and said receiver should have, in addition to the usual powers of receivers, all the rights conferred on the trustee under the indenture. This would seem to include the right of possession. This would seem to distinguish the instant case from that of Holmes v. Gravenhorst (263 N. Y. 148). There the court said (at p. 155) that the superior right of possession of the mortgagor continues until after the sale of the premises, unless the mortgage, by its terms, expressly gives the receiver authority to take possession. The instant case would, therefore, appear to come within the exception noted in the case cited. Motion is denied.