Opinion
March 19, 1945.
Present — Close, P.J., Hagarty, Johnston, Lewis and Aldrich, JJ. [ 183 Misc. 463.]
Decree of the Kings County Surrogate's Court modified on the law and the facts by reducing the amount directed to be paid by the appellant to the administratrix from the sum of $360 and interest, as therein provided, to the sum of $62.09, with interest thereon at 6% per annum from June 21, 1943, to the date of payment; and by striking from the decree the provision awarding costs to the administratrix and in place thereof inserting the words "without costs." As thus modified, the decree is unanimously affirmed, with costs to appellant, and the matter is remitted to the Surrogate's Court for the entry of a decree accordingly. The Surrogate properly held that the entry into possession of the premises and the collection of rents therefrom by the appellant under its mortgage was illegal ( Dime Savings Bank v. Altman, 249 App. Div. 174, affd. 275 N.Y. 62); but under the decision of the Court of Appeals in that case, against the $360 rents collected, the appellant was entitled to a credit for $297.91 paid by it, consisting of taxes, $271.65, water rates, $19.94, and air raid equipment, $6.32, but was not entitled to the claimed credit for insurance premium (apparently on a liability policy), $19.86, or for the amount attempted to be applied on interest accrued upon the mortgage, $42.75, which items total $62.61. This court disapproves the scandalous, scurrilous and unfounded statements contained in the affidavit of the administratrix at folios 202, 206, 215-216, and 222-223, and those statements are hereby struck from the record.