Majority
p. 847In the Matter of the Application of Title Guarantee and Trust Company, as Trustee, Owner and Holder of a Certain Mortgage Affecting Property Situate in the County of Kings, State of New York, and Known as 8640 Bay Parkway, Borough of Brooklyn, City of New York, for an Order Directing the Payment of Surplus Income of Said Property to Apply Towards the Reduction of Any Past Due Principal of Said Mortgage or Permitting Foreclosure of Said Mortgage, Pursuant to the Provisions of Section 1077-c of the Civil Practice Act. Title Guarantee and Trust Company, Appellant; Ridge Holding Corporation, Respondent.
In a proceeding under section 1077-c of the Civil Practice Act, order denying appellant’s motion to confirm the report of an official referee, which required the surplus to be paid to appellant in reduction of the mortgage, reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs. In our opinion the mortgagee is entitled to the surplus. Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., and Close, J., dissent and vote to affirm, being of the opinion that under the peculiar circumstances of this case the discretion of the Special Term was fairly and equitably exercised.