Opinion
July, 1935.
Present — Lazansky, P.J., Young, Hagarty, Tompkins and Johnston, JJ.
Order and judgment modified so as to allow credit to appellant for the 1930 taxes, amounting to $2,523.13, and the insurance premiums, amounting to $711.74, and as so modified the order and judgment are unanimously affirmed, without costs. The purpose of the hearing before the referee under Mr. Justice Wenzel's order was to determine the rent received by the appellant or the rental value of the premises during the period between the first and second sales in the foreclosure action. Appellant was to be charged with the greater of these two items and was to be allowed to deduct "all just allowances for the necessary expenses incurred in running and maintaining the said property." Appellant paid the taxes after it had purchased the property at a foreclosure sale and the Special Term had denied a motion to set aside the sale. If appellant had not paid the taxes the property would be exposed to the hazard of foreclosure by the first or third mortgagee. Under the order the taxes paid by appellant were a proper offset, and to deny appellant reimbursement would be unjust under the circumstances. Likewise, appellant is entitled to offset the amounts paid by it for fire insurance premiums.