579 Flatbush Avenue Realty Corp. v. Rosruth Realty Corp. , 250 A.D. 781 ( 1937 )

Action to foreclose a second mortgage on a parcel of real property in Brooklyn. Order granting plaintiff’s motion to strike out the defense and counterclaim and for summary judgment unanimously affirmed, in so far as appealed from, with ten dollars costs and disbursements. No fiduciary relationship arose between the owner of the fee and the assignee of rents of the first mortgagee or any agent of it which would preclude or bar either such assignee or its agents from buying the second mortgage on the property here involved. The facts disclose no breach of duty in respect of the application of the rents collected under the assignment of rents by the mortgagee in possession or its agents. It would only be in connection with a breach of duty in this respect that a fiduciary relationship would arise. There being none, no fiduciary relationship can in any other aspect arise under the assignment of rents so as to bar the plaintiff’s assignor, the agent of the first mortgagee in possession, from purchasing the second mortgage. (Ten Eyck v. Craig, 62 N.Y. 406, 418, et seq.) Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.