upon the covenant contained in the mortgage, which virtually mortgages the rents and profits of the premises, and permits the appointment of a receiver, without regard to the solvency of the mortgagees or the value of the mortgaged premises. While it is true that such provision is entitled to "consideration and weight," it is equally true that "courts of equity will not enforce such a provision in a mortgage when it would be inequitable, or unconscionable to do so." Fletcher v. Krupp, 35 App. Div. 586; 89 St. Rep. 146; 55 Supp. 146; Degener v. Stiles, 25 St. Rep. 422; 6 Supp. 474; 2 Silv. S. Ct. 30; Brick v. Hornbeck, 19 Misc. 218; 77 St. Rep. 301; 43 Supp. 301. Under the circumstances disclosed, the appointment of a receiver would involve a disregard of all the equities in the case.

Motion denied, with $10 costs.

RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,-continued.

to the adequacy of the security, but assigns the rents and profits to the holder as security in the event of a default in payment, insolvency and insecurity need not be shown in order to obtain the appointment of a receiver. Butler v. Frazer, 91 St. Rep. 900; 57 Supp. 900.

A clause providing that the mortgagee shall have the right, after any default, to take possession and receive the rents and profits of the mortgaged premises will be enforced by the appointment of a receiver, unless it would be unconscionable to do so.

Bryson v. James, 55 Super. 374.

Appeal dismissed, 110 N. Y. 633; 17 N. E. 871.

A covenant that the mortgagee, after a default in any of the conditions of the mortgage, be entitled, without regard to the value of the premises or the solvency of the mortgagor, to the appointment of a receiver of the rents and profits taken in connection with the statements in plaintiff's affidavit that the insurance and the water tax were unpaid as well as principal and interest, and that the premises did not furnish adequate security for the payment of the mortgage, is sufficient, in the absence of any proof that its enforcement would be inequitable, to authorize the court to appoint such receiver.

Fletcher v. Krupp, 35 App. Div. 586; 89 St. Rep. 146; 55 Supp. 146.

A receiver will be appointed upon an express stipulation in the mortgage, where the defense of invalidity of the mortgage on account of usury was not positively sworn to.

Knickerbocker Life Insurance Co. v. Hill, 2 Hun, 680.

1300] RIGHT TO RECEIVER IN MORTGAGE ForeclosurE, --continued.

A defense that the mortgagee failed to make the advances as required by the mortgage to be used in the erection of buildings on the mortgaged premises, in consequence whereof the mortgagor was compelled personally to advance a large sum to complete the work, and then, to save his credit, to sell the houses erected at a large reduction from their actual value, is not a good objection to granting a motion made, pursuant to a covenant to that effect in the mortgage, for the appointment of a receiver.

MacKellar v. Rogers, 52 Super. 360.

c. When security inadequate and mortgagor insolvent.

A receiver will not be appointed unless it is clearly shown that the security is inadequate.

Shotwell v. Smith, 3 Edw. 588.

A receiver of the rents and profits of the mortgaged premises will be appointed, where the mortgage debt is all due, and the premises are inadequate security, and the mortgagor is insolvent.

Smith v. Tiffany, 13 Hun, 671.

Where the mortgaged premises are insufficient in value to pay the mortgage-liens, and the persons responsible for any deficiency are wholly insolvent, the holder of the mortgage is entitled to the appointment of a receiver, although the time has not expired, by reason of an extension, within which the principal would become due by default in the payment of interest, and the interest only can be collected.

Veerhoff v. Miller, 30 App. Div. 355; 85 St. Rep. 1048; 51 Supp. 1048. Where but part of the mortgage-debt is due, and the premises are divided into two nearly equal parcels, which can be sold separately without injury to the parties interested, and there is no specific pledge by which the accruing rents of that portion of the mortgaged premises which is not liable to be sold are constituted a security for that portion of the mortgage which is not yet due, a receiver will not be appointed of the whole property, for the protection of that portion of the mortgage-debt which is not yet due, or of that portion of the premises as to which the right to sell has not yet accrued, but only of one of the parcels, although the value of the premises has been so far impaired that they have ceased to be adequate security for the amount unpaid upon the mortgage.

Hollenbeck v. Donnell, 94 N. Y. 342, rev'g 29 Hun, 94.

Where the whole amount secured by the mortgage is not yet due, and the mortgagee has neglected to take a specific pledge of the rents and profits of the mortgaged premises for the security of his debt before it becomes due, he is not entitled to have a receiver appointed, although the residue, after the sale of part of the premises to satisfy the amount due, will be insufficient to satisfy the amount yet to become due.

Bank of Ogdensburgh v. Arnold, 5 Paige, 38.

RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,-continued.

The fact that the taxes are suffered to remain unpaid, and that the insurance of the buildings is neglected, in connection with the probable insol. vency of the mortgagor presents sufficient ground for the appointment of a receiver.

Wall Street Fire Insurance Co. v. Loud, 20 How. Pr. 95.

In an action in a state court to foreclose a mortgage belonging to the estate of a bankrupt by the assignee in bankruptcy, a receiver will not be appointed unless it clearly appears that the mortgaged premises are inadequate security for the debt, and that the mortgagor is insolvent. Burlingame v. Parce, 12 Hun, 144.

Where the proceeds of the sale of the mortgaged premises under a decree of foreclosure are insufficient, and the mortgagor is insolvent, the mortgagee is entitled to a receiver to collect the rent accruing between the day of sale and the time when the purchaser will be entitled to possession by the terms of the decree, and to apply it to the payment of the deficiency. Astor v. Turner, 11 Paige, 436.

Where the mortgaged premises are of sufficient value to pay the mortgagedebt with the interest till the probable time of a sale and the costs of suit, a receiver will not be appointed, although the mortgagor is insolvent. Quincy v. Cheeseman, 4 Sandf. Ch. 405.

A receiver will not be appointed, although there is no doubt of the mortgagor's insolvency, where there is considerable doubt as to the inadequacy of the security.

Warner v. Gouverneur's Exec's., 1 Barb. 36.

A receiver will not be appointed, although the mortgagor is insolvent and the mortgaged premises are inadequate security, where a third person took, for a valuable consideration, an assignment of the rents, before any default had occurred in the payment of the mortgage-debt and before there was any reason to anticipate that the mortgagor would become insolvent.

Syracuse City Bank v. Tallman, 31 Barb. 201.

The court may appoint a receiver where it appears that the whole of the premises are inadequate security and that they are rapidly depreciating in value by reason of the fact that the oil business, for which they are chiefly valuable, is rapidly decreasing at that point.

Smith v. Kelley, 31 Hun, 387.

Where the defendant is in possession of the mortgaged premises by his tenant, who is not a party, and it is not shown that he is irresponsible, a receiver will not be appointed.

Sea Insurance Co. v. Stebbins, 8 Paige, 565.

An affidavit of plaintiff's attorney, in which he states that he is informed by plaintiff that it is extremely doubtful whether the mortgaged premises will sell at a foreclosure sale, subject to the incumbrances, for enough to

RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,-continued.

pay the amount of the mortgage, is not sufficient evidence of the inadequacy

of the security to justify the appointment of a receiver.

Sickles v. Canary, 8 App. Div. 308; 75 St. Rep. 347; 40 Supp. 948.

d. Relative right of senior and junior mortgagee.

A junior mortgagee is entitled to the appointment of a receiver where he has a superior equity, and no part of the principal or interest of his mortgage has been paid nor interest for a number of years upon the prior mortgage, taxes have been permitted to accumulate upon the property, and the security is quite precarious and likely to prove inadequate.

Ross v. Vernam, 6 App. Div. 246; 39 Supp. 1031.

The first mortgagee may have a receiver appointed where there is doubt as to the mortgaged premises being adequate security for the first mortgage, although the second mortgagee is in possession, is perfectly responsible, and his mortgage debt remains unsatisfied.

N. Y. Life Insurance Co. v. Glass, 50 How. Pr. 88.

A receiver should be appointed on the application of the holder of a second mortgage where it is very doubtful whether the premises upon the sale will bring more than enough to pay the first mortgage and the taxes. Browning v. Stacey, 99 St. Rep. 203; 65 Supp. 203.

A second mortgagee is entitled to a receiver where his mortgage contains the provision that, on default, he should be entitled to the appointment of a receiver, without regard to the value of the property, or the solvency of the mortgagor, and the premises, on foreclosure sale, will not sell for the amount of the first mortgage which is due and about to be foreclosed, and the mortgagor refuses to apply the rents to discharge the accruing interest and taxes.

Browning v. Sire, 101 St. Rep. 798; 67 Supp. 798.

A receiver will be appointed on the application of the second mortgagee, where the mortgage contains a stipulation for such appointment in case of default, and it further appears that the parties in possession of the premises receive the rents, but refuse to apply them for the benefit of the property, and that the interest on the first mortgage, and the taxes and assessments on the property, are unpaid.

Keogh Mfg. Co. v. Whiston, 26 Abb. N. C. 358; 14 Supp. 344.

e. Of property of corporation.

A receiver of the property of a corporation can be appointed only by the court, and in one of the following cases:

2. An action brought for the foreclosure of a mortgage upon the property, of which the receiver is appointed, where the mortgage debt, or the interest thereupon, has remained unpaid, at least thirty days after it was payable, and after payment thereof was duly demanded of the proper officers of the

RIGHT TO RECEIVER IN MORTGAGE FORECLOSURE,-continued.

corporation; and where either the income of the property is specifically mortgaged, or the property itself in probably insufficient to pay the mort gage debt.

§ 1810 Code of Civil Procedure.

Upon an application for the appointment of a receiver of the property of a corporation, a verified complaint alleging upon information and belief default in the payment of the interest coupons and an election by the bond. holders under the terms of the mortgage to declare the whole principal due, when not met or denied either by answer or affidavits, fully establishes the facts and authorizes the appointment of a receiver.

Holland Trust Co. v. Consolidated Gas & Electric Co., 85 Hun, 454; 66 St. Rep. 291; 32 Supp. 830.

Where there has been a default in the payment of interest, a receiver should be appointed upon the foreclosure of a paramount mortgage, al though a general receiver has previously been appointed of the property of such corporation in the foreclosure of a junior mortgage.

Holland Trust Co. v. Consolidated Gas & Electric Co., 85 Hun, 454; 66 St Rep. 291; 32 Supp. 830.

SMITH v. VILLAGE OF HENDERSON.

[54 App. Div. 26; 100 St. Rep. 347; 66 Supp. 347.]

(Supreme Court, Appcllate Division, Fourth Department. September 25, 1900.)

HIGHWAYS-BICYCLES-GUARD-RAIL-NEGLIGENCE.

Plaintiff, riding along the middle of the street in the afternoon, lost control of her bicycle by the slipping of her foot from one pedal. The

NOTE.-MAINTENANCE OF HIGHWAYS IN SAFE CONDITION FOR BICYCLISTS

a. In general.

b. Measure of duty of municipality.

a. In general.

"Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.”

§ 16, Highway Law (L. 1890, chap. 568.)