241 A.D. 822 | N.Y. App. Div. | 1934
Order approving and confirming the receiver’s account reversed on the law and the facts, with ten dollars costs and disbursements to abide the event, and the matter remitted to the Special Term to take proof on the subject of the diligence of the receiver in his management of the property committed to his care and control and the collection of rents or the value of use and occupation during the period he was in possession; or for the parties to proceed otherwise as they may be advised. No proper proof of diligence appears in this record; but evidently something was shown on the hearing at Special Term to convince the court that diligence was in fact exercised by the receiver. Evidence on that subject should be produced in the form of oral proof or by further affidavits as the Special Term in its discretion shall determine; and the fact that the receiver was diligent or otherwise should be decided on the evidence presented. Lazansky, P. J., Young, Kapper, Hagarty and Davis, JJ., concur.