31 A.D.2d 967 | N.Y. App. Div. | 1969
Order of the (Supreme Court, Queens County, dated May 22, 1968, modified, on the law and the facte, by deleting therefrom the seventh and eighth decretal paragraphs and substituting therefor a provision directing the receiver (1) to restate his account so as to set forth the rents and expenditures attributable to the period between June 3, 1965 and August 1, 1966 separately from the same for the period thereafter and (2) to distribute the moneys in his possession, after deduction of his commissions, as follows: (a) to Max Fehr, all the rents collected between June 3, I960 and August 1, 1966, less expenditures, and (b) to F. F. C. Associates, all the rente collected after August 1, 1966, less expenditures. As so modified, order affirmed, without costs. Order of the same court, dated September 13, 1968, which denied a motion by F. F. C. for reconsideration, in which appellants Hollinger and Sarlitt joined in part, affirmed, without costs. In this proceeding by a court-appointed receiver of rents for an order settling his account, directing his discharge, fixing his commissions and directing payment of the balance of the moneys in his hands, the issue concerns which of three sets of claimants, (1) F. F. 0. Associates, second mortgagees, (2) Max Fehr, a judgment creditor, and (3) 'Charles Hollinger and Rose Sarlitt, as trustee for Emily A. Hollinger, judgment creditors (hereinafter called the “Hollingers”), is entitled to the $21,613.02 held by the receiver for distribution. By judgment entered November 20, 1964 the Hollingers became judgment creditors of First Americana Corporation. By judgment entered January 25, 1965 Fehr became a judgment creditor of First Americana (in Action No. 1). On June 3, 1965, pursuant to CPLR 5228, Fehr obtained an order of the Supreme Court, Queens County, appointing a Receiver of rente of certain real property owned by First Americana, 34 two-family homes in Howard Beach, Queens. In July, 1965, F. F. C., as second mortgagee, commenced a foreclosure action because of alleged defaults in monthly payments. Shortly thereafter, on July 30, 1965, Nassau Savings and Loan Association, the first mortgagee, also commenced a foreclosure action (Action No. 2) which was carried to completion and, pursuant to a judgment entered therein on February 1, 1966, the homes were sold and the first mortgage satisfied. On August 6, 1965 the receivership was extended for the benefit of Nassau and on August 1, 1966 it was extended to F. F. C. The receivership was never extended to the Hollingers, who submit they were unaware of the rent asset because they had no notice of FehCs receivership application. F. F. C. contends that it is entitled to the rents collected by the receiver from August 6, 1965, when the receivership was extended to Nassau, since Nassau’s mortgage was satisfied from the proceeds