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PHILIP BRODATZ ET AL. v. HERBERT J. ENGELMANN ET AL. (12/09/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 9, 1968

PHILIP BRODATZ ET AL., APPELLANTS,
v.
HERBERT J. ENGELMANN ET AL., DEFENDANTS. SHERMAN HOLLANDER, AS EXECUTOR OF MAX W. HOLLANDER, DECEASED, RESPONDENT

Appeal from order of the Supreme Court, Suffolk County, entered September 7, 1961, dismissed, without costs. Said order was superseded by the resettled order entered October 29, 1962.

Christ, Acting P. J., Brennan, Hopkins, Benjamin and Martuscello, JJ., concur.

Order of the same court made on resettlement and entered October 29, 1962, modified, on the law and the facts, by (1) striking therefrom the two resettled ordering paragraphs which direct that plaintiffs are not entitled to interest on the judgment and that plaintiffs be reimbursed for a certain tax payment only out of funds in the receiver's hands and (2) substituting therefor the following: "ORDERED, that the accrued interest on the judgment, in the amount of $768.49, and the taxes on the property for the year 1959-1960 in the amount of $474.32 due January 1, 1960 and paid by the plaintiffs October 5, 1960 shall not be paid by the Referee out of the proceeds on hand but shall be reimbursed to them from the funds in the hands of the receiver." As so modified, order affirmed, without costs. In our opinion, the record does not support a finding of waiver by plaintiffs of interest awarded in the judgment of foreclosure and sale. The record does support a finding, however, that plaintiffs agreed to look to the fund in the hands of the receiver of rents appointed at their instance for payment of accrued interest and the tax payment they made.

19681209

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