Realty Associates Securities Corp. v. Jaybar Realty Corp.

257 A.D. 1001, 13 N.Y.S.2d 881, 1939 N.Y. App. Div. LEXIS 8877

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1939
• Status: Published

Opinion

— -Order confirming report of referee in foreclosure and reports of an official referee in surplus money proceedings, in so far as appealed from, modified by striking therefrom the sum of seventy-five dollars directed to be paid to' Benjamin L. Sandberg, Esq., and substituting in lieu thereof the sum of twenty dollars, and by striking therefrom the sum of $540 directed to be paid to M. W., Inc., and substituting in lieu thereof the sum of $225, and, as so modified, affirmed, with costs payable by appellants to respondent Louis Kreger, and otherwise without costs. Rule 262 of the Rules of Civil Practice prohibits an allowance to counsel in surplus money proceedings. (Reilly v. Empire State Improvement Corp., 251 N. Y. 351, 353.) In view of the stipulation of the parties, the sum of $540 must be accepted as the unpaid balance at the time of the filing of a notice of lien. As the surplus moneys were derived from the sale of but five of twelve houses, as against which it was admitted the claim was applicable and the lien applied, respondent M. W., Inc., is entitled to a proportionate sum of $225. The amounts received by way of releases by M. W,, Ine., partly or wholly for extras, are immaterial so long as that respondent receives but its allocated share from the proceeds derived from the houses in question, and has not been overpaid. It is clear that the mortgage of the appellants was subordinate to that of respondent Kreger. Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.