In re the Mortgage Commission — 248 A.D. 739

Majority

p. 739

In the Matter of the Application of the Mortgage Commission of the State of New York for an Order Directing Isidore Salisch to Make Available All Records and Data with Respect to Income and for an Order Directing the Payment of Surplus Income or Such Part Thereof as the Court May Determine to

p. 740

the Mortgagee, the Mortgage Commission of the State of New York, for and on Behalf of the Certificate Holders of Mortgage Bearing Number 16271 Series “X” to Apply Toward the Payment of the Past Due Principal on the First Mortgage Covering the Premises Located at 240 East Forty-sixth Street, Brooklyn, New York, and Owned by Isidore Salisch, Pursuant to the Provisions of Section 1077-c of the Civil Practice Act. Mortgage Commission of the State of New York, Appellant; Isidore Salisch, Respondent.

Proceeding under section 1077-c of the Civil Practice Act for an order (a) making available the records and data as to income of certain mortgaged premises for a six months’ period preceding March 1, 1936; (b) and in the event it appears from such data that there is a surplus, that the same be applied to the pasunent of past due principal of the mortgage; and (c) in the event the owner fails to make available such data or does not furnish adequate data, that an order be made permitting the petitioner to foreclose the mortgage. Order den3dng the application reversed on the law, with ten dollars costs and disbursements, and the matter remitted to the Special Term for such order as may be justified in the event the records and data are not made available or the records are inadequate, or disclose a surplus. It is plain that section 1077-e of the Civil Practice Act contemplates that the owner make available to the mortgagee the records and data respecting a six-month period without the need for recourse to the court for an order therefor. If the data reveal a surplus, the court may make an order that such surplus be applied in payment of principal. If the data be not made available or the records prove inadequate, the court may make an order permitting a foreclosure. Here, the owner should make available the records and data in advance of the court’s being called upon to rule in respect of the matter. Petitioner need not establish by means other than such data whether or not such surplus exists in order to become entitled to an order under said section. Lazansky, P. J., Young, Carswell, Johnston and Taylor, JJ., concur.