Opinion
June 7, 1937.
Order settling and approving the account of a receiver appointed in an action to foreclose a second mortgage and directing the receiver to apply the money in his hands to the payment of taxes against the premises modified by striking out the third ordering paragraph thereof and by inserting a direction to pay to appellant, Louis-Anne Realty Co., Inc., the sum of $223.17 remaining in the hands of said receiver, together with any interest which, in the meantime, shall have accrued. As so modified, the order is affirmed, with ten dollars costs and disbursements to appellant. The fund in question having accrued in the hands of the receiver prior to the date of the order extending the receivership for the benefit of the holder of the first mortgage, the respondent has no claim, either legal or equitable, thereto. ( Meeker v. Mayfair Cleaners Dyers, Inc., 242 App. Div. 834.) The fund belongs either to the plaintiff in the action to foreclose the second mortgage for whose benefit the receiver was appointed, or to the former owner of the equity of redemption. It is not necessary to decide that question as the plaintiff in the action to foreclose the second mortgage has assigned his rights to the former owner, appellant. The order appointing the receiver, in so far as its provisions relating to the payment of taxes are concerned, is permissive and not mandatory. ( Kroehle v. Ravitch, 148 App. Div. 54, and cases cited therein.) Lazansky, P.J., Carswell, Adel, Taylor and Close, JJ., concur.