
    Fresh Air Fund of the Church of the Divine Paternity, Plaintiff, v. Noob Realty Co., Inc., and Others, Defendants.
    
    Supreme Court, Queens Comity,
    April 6, 1934.
    
      Samuel C. Whitman, for the plaintiff.
    
      Samuel Perlo, for the defendants.
    
      
       See, also, Central Hanover Bank & Trust Co. v. Boccia (244 App. Div. 106).
    
   Strong, J.

This is a motion by the plaintiff to direct the receiver to pay over the balance remaining in his hands after the payment of his commissions to the plaintiff on account of a deficiency. Section 1083-a of the Civil Practice Act (as added by Laws of 1933, chap. 794, § 2), which provides that simultaneously with the making of a motion for an order confirming the sale or in any event within ninety days after the date of the sale,” the party may make a motion for leave to enter a deficiency judgment, does not limit the plaintiff to ninety days from the date of auction by the referee, but refers to the completion of the sale by the delivery of the referee’s deed. The ninety-day period is to be calculated from that ' day. To hold otherwise would deprive the plaintiff of his rights where there is a delay in the closing due to no fault of his. This the Legislature could not have intended. The papers do not show the time of the delivery of the deed. I will require an additional affidavit giving this date.  