Legal Opinion · Dissent

Reich v. . Cochran

New York Court of Appeals

Decided January 12, 1915Published

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1914, which reversed an interlocutory judgment of Special Term overruling a demurrer to the amended complaint and sustained such demurrer.

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Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1914, which reversed an interlocutory judgment of Special Term overruling a demurrer to the amended complaint and sustained such demurrer. The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action ? ” The action, as denominated by the counsel for either party, is to redeem from a mortgage with an accounting of rents and profits received. The facts alleged in the complaint, material to the question…

1Dissent

Collin, J. (dissenting).

It is the law, in this jurisdiction, that a mortgagee who takes possession of the mortgaged premises without the consent of the owner of the equity of redemption, express or implied, is not a mortgagee in possession (Becker v. McCrea, 193 N. Y. 423), and has, in so far as his rights as mortgagee have effect, unlawfully taken possession and is as to the owner of the premises a trespasser removable by the action of ejectment. (Barson v. Mulligan, 191 N. Y. 306; Howell v. Leavitt, 95 N. Y. 617; Gross v. Welwood, 90 N. Y. 638; Deutsch v. Haab, 135 App. Div. 756.) Other…

2Cases cited16 opinions

  1. Barson v. . MulliganNew York Court of Appeals · 1908
  2. Wadleigh v. PhelpsCalifornia Supreme Court · 1906
  3. Howell v. . LeavittNew York Court of Appeals · 1884
  4. Gaskell v. ViquesneyIndiana Supreme Court · 1890
  5. Becker v. . McCreaNew York Court of Appeals · 1908

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