I was not entirely assured on the argument of this appeal but that the mortgagee obtained a superior right and equity to the uncollected rents and j>rofits of the mortgaged premises, over the assignee *301in bankruptcy of the mortgagor, from the time the former instituted liis proceeding for the appointment of a receiver. But I find on looking into the authorities (and on reflection this must bo so on principle) that the receiver obtained no right to the rents and profits of the mortgaged premises until his appointment, and then only to such as remained unpaid to the owner of the equity of redemption, or to the party representing such owner; in this case the assignee in bankruptcy. • It was by virtue of the appointment that the mortgagee obtained an equitable lien on the unpaid rents of the premises mortgaged. (Lofsky v. Maujer, 3 Sandf. Ch., 69; Howell v. Ripley, 10 Paige, 43; Astor v. Turner, 11 Paige, 436 ; Bank of Ogdensburghs. Arnold, 5 Paige, 38; Post v. Dorr, 4 Edwd. Ch., 412.) The receiver in this case was appointed on the 17th of February. To that time the owner of the equity of redemption, or the party representing him, had the right to make collection of the rents, unless restrained by injunction from so doing. There was no injunction in this case; therefore, the right to receive the rents remained to the mortgagor, or in this case, to his assignee in bankruptcy, who represented his rights in the mortgaged property, until the 17th of February, when the receiver herein was appointed. It was held in Astor v. Turner (supra), that it was by the appointment of a receiver that the mortgagee may obtain a specific lien upon the rents and profits to answer any expected deficiency; and that he could not call on the owner of the equity of redemption to refund rents and profits, which the latter had collected or received before the mortgagee secured his specifie lien by the appointment.of the receiver. So, too, it was said in Post v. Dorr (supra), in substance, that a mortgagee acquires a specific lien upon the rents by obtaining the appointment of a receiver of them. In this case the rents were collected and received by the assignee in bankruptcy before the appointment of the receiver. The order of the Special Term was right and must be affirmed.
Learned, P. J., and Boardman, J., concurred.Order affirmed, with ten dollars costs and disbursements.