
    Dime Savings Bank of Brooklyn, Plaintiff, v. Reynal Park Lawns, Inc., et al., Defendants.
    Supreme Court, Special Term, Nassau County,
    March 28, 1962.
    
      William A. Anzalone for plaintiff. John J. Di Sesa for Ernest J. Calcagni, doing business under the name of R. Calcagni & Son, defendant. Robert M. Morgenthau, United States Attorney, for United States of America, defendant. Bertram R. Bernstein for Cooney Brothers, Inc., and another, defendants.
   Paul J. Widlitz, J.

On this motion to confirm the report of a Referee (appointed to ascertain and compute the amount due to the plaintiff for principal and interest) and for a final judgment of foreclosure and sale providing inter alia that “ the said Referee shall sell and convey said premises subject to the following: * * # 5. All local real estate taxes, assessments, water rates and sewer rentals that are unpaid and liens upon the mortgaged premises herein at the time of sale pursuant hereto (emphasis supplied). The United States of America opposes the sale subject to such local taxes, etc. because of the alleged priority of the lien of the United States over local taxes accruing subsequent to an assessment for withholding taxes due from Reynal Park Lawns, Inc., made on February 24, 1961.

In view of the uncertainty in the final determination of the question of priority between local real estate taxes and Federal tax liens raised by such decisions as Buffalo Sav. Bank v. Victory (11 N Y 2d 31) and United States v. New Britain (347 U. S. 81 [1954]) the court will permit the sale (as authorized by section 1087 of the Civil Practice Act) subject to the lien of the local taxes, etc. (See Feinstein v. Earl, 34 Misc 2d 140.)

Accordingly the motion of the plaintiff is granted and the judgment hereon is signed as submitted.  