
    Railroad Federal Savings and Loan Association, Plaintiff, v. Ann Morrison et al., Defendants.
    Supreme Court, Special Term, Queens County,
    February 1, 1943.
    
      
      Arthur J. Brothers for Ann Morrison, defendant.
    
      Grant & Wefer for plaintiff.
   Hallinan, J.

In an action to foreclose a mortgage on a two-family house the owner of record, the defendant Ann Morrison, moves for an order to stay the action pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended October 6, 1942 (U. S. Code, tit. 50, Appendix, § 530 et seq.) upon the ground that her husband is in the armed services of the United States.

It appears from the papers before me that the sum of fifty-one dollars and seventy-six cents was required to be paid monthly under the terms of the mortgage; that the interest on the balance due on the mortgage amounts to approximately twenty-eight dollars per month, and the taxes twenty dollars per month. The upper apartment of the premises under foreclosure has been rented since September 1, 1942, at the rate of forty-five dollars per month, and the moving defendant is receiving an allotment and allowance of sixty-two dollars per month. The defendant has offered to pay the sum of twenty-five dollars per month as a condition for obtaining a stay, but the plaintiff has refused. It insists that the sum of forty-eight dollars per month be paid.

The Act requires that the court make such a disposition as may be equitable to conserve the interests of all parties. (§ 302, subd, 2; U. S. Code, tit. 50, Appendix, § 532, subd. 2; see, also, Nassau Savings & Loan Association v. Ormond, 179 Misc. 447.)

I am of the opinion that in view of the rental received from the upper apartment of forty-five dollars per month it will be fair to require the payment of thirty-five dollars per month thereof as a condition for granting the instant application. Said sum shall first be applied to the payment of taxes and the balance to the payment of interest.

Settle order on notice.  