Opinion
March 15, 1943.
In a surplus-income proceeding under section 1077-c of the Civil Practice Act, the owner of the mortgaged property appeals (a) from an order directing said owner to pay on account of principal $779.06, as surplus income derived from the mortgaged property; and (b) from so much of another order as adheres to the previous determination after reargument and reconsideration of petitioner's original application. Order entered on reargument, insofar as appealed from, reversed on the law and the facts and in the exercise of discretion, with ten dollars costs and disbursements, and the motion for an order directing payment denied, with ten dollars costs. The period selected by the mortgagee for the determination of surplus income was from June 17 to November 17, 1941, during which the expense of operating the property was much less than in the six months immediately following. The owner showed on the original motion expenses for the operation of the property during the selected period, and due and unpaid at the end of that period, which exceeded the surplus income found by the court below, and, on the motion for reargument and reconsideration, the owner showed additional fixed and necessary expenses for the operation of the property in the six months immediately following the selected period. These combined expenses were not disputed, and in the exercise of sound discretion, the Special Term should have found that no surplus income was shown for the selected period. ( Matter of Mortgage Corporation of N.Y. [ Ohlbaum], 263 App. Div. 627, affd. 289 N.Y. 686; Chase Nat. Bank v. Guardian Realties, Inc., 283 N.Y. 350, 363.) Appeal from original order dismissed, without costs. Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ., concur.