On March 5, 1930, an action was brought to foreclose the first mortgage on the premises in question.
A second mortgage, which is the subject-matter of this action, repiesents an indebtedness, principal and interest, amounting to $29,989.71, which by the terms of the bond and mortgage became due and payable in January, 1930.
On April 8, 1930, this plaintiff commenced action to foreclose the second mortgage. April 9, 1930, a receiver was appointed in that mortgagee’s behalf, and he qualified April 11, 1930. On that date he made due demand on the Hall of Fame Garage, Inc., to turn over to Mm the rents, issues and profits, wMch it refused to do. Upon motion an order was made directing said Hall of Fame Garage, Inc., to attorn to the receiver as of April 11, 1930. This was followed by the motions made by said receiver to direct said occupant to pay Mm the fair and reasonable rental for the use and occupation of the mortgaged piemises.
The Hall of Fame Garage, Inc., is willing to attorn to the receiver, but insists upon its alleged rights under a lease dated March 24, 1930, for a term of three years from said date, at a montMy rental of $250 for April, May and June, 1930, and $1,500 for July, August and September, 1930, with a provision for a graded rental for the rest of the term. This lease was made after the mortgage foreclosure was begun.
The court at Special Term demed the receiver’s motion to fix the reasonable rental value to be paid to Mm by the occupant in possession of the mortgaged premises, because it was “ of the opinion that the court is without power to ignore the lease wMch the tenant holds, and summarily order the tenant to pay to the receiver a sum of money which the latter claims as the reasonable rental value of the premises.”
We tMnk that the Hall of Fame Garage, Inc., should be directed to pay during its occupancy such reasonable rental value as the *110court may fix, and that this court can summarily fix the rent. Such power is expressly declared in Olive v. Levy (201 App. Div. 262). A receiver of mortgaged premises, regardless of any agreement previously made by the landlord, is entitled to receive and the occupants are required to pay the reasonable value of the use and occupation. Even if lent were paid in advance, tenants would be directed to pay the receiver for the use and occupation of the premises. (Olive v. Levy, supra.)
The orders appealed from should be reversed, with ten dollars costs and disbursements, and the motion to fix the reasonable rental value at $2,000 per month should be granted.
Merrell and Martin, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and. motion of receiver to. fix the sum of $2,000 per month as the reasonable rental value for the use and occupation of the mortgaged premises granted. Settle order on notice.