Citation Numbers: 152 Misc. 772
Judges: Cotillo
Filed Date: 11/28/1933
Status: Precedential
Modified Date: 1/12/2023
This action in foreclosure was pending at the time of the passage of section 1077-e of the Civil Practice Act (as added by Laws of 1933, chap. 793, § 2). Prior to the expiration of thirty days after August 28, 1933, plaintiff was tendered the sum of $100
If there was a receiver in the action, the surplus funds should be applied toward taxes and interest, and the surplus then remaining applied against defaults in principal. As to the costs, the insufficiency of the tender is no bar, as the costs may be adjusted by proper motion in the event of dispute. Since the discontinuance is under the statute, I doubt very much whether section 1512, subdivision 5, of the Civil Practice Act, applies.
While it is clear that no proper tender was made, the insufficiency was undoubtedly due to lack of an authoritative interpretation of the law.
Under the circumstances, therefore, the motion to discontinue will be granted, provided within twenty days defendant pays all moneys due for interest and taxes, together with costs; any surplus moneys in a receiver’s account to which plaintiff would otherwise be entitled to be credited against the amounts necessary to vacate the defaults existing at the date of the order. Settle order.