Opinion
October 1, 1964
Order, entered on June 17, 1964, granting plaintiff's motion for the appointment of a receiver in a mortgage foreclosure action, unanimously modified, on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to plaintiff-respondent, to the extent of terminating the receivership on condition that the parties continue to abide by the provisions contained in the order of this court, entered July 7, 1964, granting a stay of certain proceedings pending determination of the appeal, some of which conditions are also contained in the order to show cause signed by a Justice of this court on June 17, 1964, and on the further condition that defendant-appellant pay expenses or disbursements, if any, incurred in connection with the receivership and provided no new defaults in payments due under the mortgage note in suit occur pending determination of the action, without prejudice to plaintiff-respondent making a new motion for the appointment of a receiver on the ground that any of the conditions have been breached, any new default has occurred, or for any new cause establishing hazard to the security for the mortgage debt. In view of the fact that the stay conditions provided for various limitations protecting the security for the mortgage debt and allow of close supervision of the financial accounts of the mortgagor, there would seem to be no present need for the receivership. Thus the determination of the several issues, including that of the financial perquisites of Charles Zarucci should await determination of the action. Because the revenues of the hotel may suffer decline during the Winter season it is highly desirable that the action proceed to prompt trial and early determination. Should defendant-appellant be responsible for any extended delays in the prosecution of the action this, among the conditions specified, would entitle plaintiff-respondent to apply anew for the appointment of a receiver. (See, generally, 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 6401.03-6401.08.) Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Eager and Staley, JJ.