Opinion
March 26, 1945.
Newman Bisco for petitioner.
Isaac Ellman for respondent.
This is an application under section 1077-c of the Civil Practice Act for an order requiring the owner to pay surplus to the trustee, to produce records of income and disbursements and, in the event of respondent's failure so to do, for an order permitting foreclosure.
The owner contends that at the time of this application the statutory amortization due January 1, 1945, was unpaid, as alleged in the petition, for which default the applicant could foreclose under section 1077-g of the Civil Practice Act and hence it cannot avail itself of the instant remedy.
Section 1077-g of the Civil Practice Act provides that the right of the holder of a mortgage to foreclose exists notwithstanding the provisions of section 1077-c of the Civil Practice Act and is not in limitation thereof. This case is clearly distinguishable from the one involving a default in taxes ( Matter of Lafayette Nat. Bank, N.Y.L.J., Aug. 2, 1943, p. 226, col. 4).
Motion to require respondent to produce records is granted. Upon its failure to do so an order permitting foreclosure may be entered.