SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 12, 1968
CITY OF UTICA, PLAINTIFF,
GOLD MEDAL PACKING CORPORATION ET AL., DEFENDANTS IMPLEADED WITH WILLIAM A. SCHMITT, TRUSTEE OF GOLD MEDAL PACKING CORP., BANKRUPT, APPELLANT-RESPONDENT, AND CHICAGO DRESSED BEEF CO., INC., RESPONDENT-APPELLANT. (NO. 2.)
Appeals from order of Oneida Special Term granting, in part, motion to dismiss certain defenses. 54 Misc. 2d 721.
Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ.
Memorandum: As assignee of the mortgage on certain property of Gold Medal Packing Corporation, Chicago Dressed Beef, Inc. (hereinafter "Chicago"), instituted foreclosure action thereon and secured the appointment of a receiver in that action. From time to time it advanced funds to the receiver to defray his expenses. The award in condemnation supplants the real estate securing said mortgage; and Chicago moved for summary judgment to be reimbursed for the expenses which it incurred in financing the receiver. Among other provisions the order appealed from denies that motion unconditionally. The court recognized that the receiver has not completed his duties and has not accounted, and that generally a mortgagee should be reimbursed for its advances to the receiver, but it held that under the circumstances of this case the mortgagee must look solely to the assets in the hands of the receiver for reimbursement. We believe that by that decision the court peremptorily determined issues of fact as well as of law: and that this portion of the order should be modified to deny the motion without prejudice to a determination of Chicago's claim upon the receiver's accounting, and as so modified the order should be affirmed.
Order insofar as it denies the motion of Chicago Dressed Beef, Inc., for reimbursement of expenses it advanced to the receiver unanimously modified to provide that such denial be without prejudice to a determination of the claim upon the receiver's accounting, and as so modified order affirmed, with costs.
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