In re Manhattan Savings Bank , 43 N.Y.S.2d 390 ( 1943 )

Eder, J.

Application pursuant to section 1077-c of the Civil Practice Act.

The mortgage of the petitioner covers one half of the building-in question, that known as 238-246 West 19th Street; the remain-

ing part of the building, known as 248-256 West 19th Street, is not covered by the petitioner’s mortgage, but by a mortgage held by another person; said premises comprise a plot of land which has a frontage of 156 feet on 19th Street, with a uniform depth of 92 feet; there is one building on the whole plot, which was erected as, and now is used as, a public garage. Whatever income is or has been produced comes from the whole building and not from any particular part of it.

Section 1077-c of the Civil Practice Act provides for the payment to the mortgagee of the surplus income produced by the mortgaged property. In the instant case, for the reasons stated above, the mortgaged property cannot be said to have produced any income; nor can there be any allocation to that portion of the building covered by the petitioner’s mortgage of any particular part of the income unless it is arbitrarily apportioned and section 1077-c makes no provision for such a situation. The application herein does not come, therefore, within the scope of section 1077-c, and must therefore be denied. In consequence of this ruling it becomes unnecessary to pass upon any other ground urged in opposition to this application. Motion denied.