
    John J. McCloskey, as Sheriff of the City of New York, et al., Respondents, v. Joseph Eckhaus et al., Individually and as General Partners of Phoenix Motel Co., et al., Appellants.
   Judgment entered April 15, 1963, directing defendants-appellants to turn over to the Sheriff a certain mortgage on property in Arizona and an accompanying note, unanimously affirmed, with costs to plaintiffs-respondents. (Debtor and Creditor Law, § 278, subd. 1, par. b; Civ. Prac. Act, § 916 [now CPLR, §§ 5201, 6202].) We construe the second decretal paragraph of the judgment which is somewhat ambiguous to require the individuals who control The Wolf Corporation to cause it to make the payments to the extent The Wolf Corporation is able to do so. We do not determine the rights of Preferred Properties, Inc., or of any third person in and to the mortgage and promissory note and this affirmance is without prejudice to those rights, if any. We have disregarded personal statements in respondents’ brief regarding counsel as immaterial and unnecessary. Concur — Botein, P. J., McNally, Eager and Steuer, JJ.; Rabin, J., concurs in the following memorandum: I, too, reach the conclusion that there must be an affirmance. If the defendants-appellants were holding the mortgage as collateral against a possible ultimate deficiency arising out of the breach of the first lease then I would say that they had a sufficient interest in that mortgage to retain it and the direction to turn it over to the Sheriff would have been improper. But the position of the defendants-appellants is that they hold this mortgage as security for the performance of the second lease rather than the first. There is nothing in the record to sustain the position that they have a right to hold the mortgage as security for that lease. Accordingly, I join in the affirmance.  