Dime Savings Bank of Brooklyn v. Coleman

267 A.D. 828, 45 N.Y.S.2d 783, 1944 N.Y. App. Div. LEXIS 4999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1944
• Status: Published

Opinion

Appeal by defendant-appellant Pauline A. Coleman from an order denying her motion to surcharge a receiver in a mortgage foreclosure action and for a direction to the receiver to pay over to said defendant the balance of funds remaining in her hands after the allowance of proper disbursements. The appellant conveyed the premises to the plaintiff in consideration of the payment of the sum of $350, and the foreclosure action was thereupon discontinued. This conveyance satisfied the mortgage debt. (Central Hanover Bank & Trust Co. v. Boslyn Estates, 266 App. Div. 244.) The appellant retained title to the premises during the receivership and until the conveyance of the premises (Keeney v. Home Ins. Co., 71 N. Y. 396, 401); and the rentals collected were held by the receiver for the maintenance of the property and to be applied to the reduction of the mortgage debt. (Holmes V. Gravenhorst, 263 N. Y. 148, 152.) Since the debt was satisfied and the appellant had not specifically released her claim to the funds in the hands of the receiver, she is entitled to an order directing the payment to her of the balance of the funds remaining over and above proper disbursements and allowances. The order is reversed on the law, with ten dollars costs and disbursements against the plaintiff-respondent, and the matter is remitted to Special Term for further action in accordance with this memorandum. Close, P. J., Hagarty, Carswell, Adel and Aldrich, JJ., concur.