In re City of New York — 255 A.D. 1019

Majority

p. 1019

In the Matter of the Application of The City of New York, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired for the Same Purpose in Fee to the Real Property Required for the Opening and Extending of Union Turnpike, from Austin Street to Queens Boulevard, Grand Central Parkway, from Queens Boulevard to the Easterly City Line, Excepting the Lands of the Brooklyn State Hospital, Creedmoor Division, and the Lands Acquired for Alley Park, Utopia Parkway, from Grand Central Parkway to 32nd Avenue, Cross Island Boulevard, from Grand Central Parkway to a Property Line Approximately 108 Feet Southerly from Epsom Court, and Little Neck Parkway, from Grand Central Parkway to Langston Avenue, in the 2nd, 3rd and 4th Wards, Borough of Queens, City of New York. Application of Harry Knabel and Samuel Levine, Appellants; Kewlane Realty, Inc., and Julius Shapiro, Respondents.

After an award had been made by final decree in a condemnation proceeding, an independent proceeding was instituted by claimants, who were tenants in a part of the property condemned, to determine the priority as between themselves and the holder of a junior interest in the mortgage. It was referred to an official referee, who made findings which, by stipulation, were passed upon by the Special Term. The findings and the order at Special Term gave priority to the holder of the junior interest in the mortgage, but surcharged the owner with about $16,000 for misapplication of certain advance payments received on the award. This did not affect the rights of the mortgagees, but, under the agreement between the owner and the tenants, gave to the latter the right to recover this sum or to have a mortgage on the remaining property for the amount. Order unanimously affirmed, without costs, and without prejudice to the claimants to pursue their remedy in any other action or proceeding as they may be advised. Present — Lazansky, P. J., Davis, Adel, Taylor and Close, JJ.