
    In the Matter of the Application of The People of the State of New York, by Georoe S. Van Schaick, as Superintendent of Insurance of the State of New York, for an Order to Take Possession of the Property of and Rehabilitate the Lawyers Title and Guaranty Company.
    Supreme Court, New York County,
    February 16, 1935.
    
      
      Rumsey & Barker [LeRoy B. Iserman of counsel], for the petitioners, for the motion.
    
      Harry Rodwin, for the Superintendent of Insurance, as rehabilitator, opposed.
   Frankenthaler, J.

This application is granted by consent as to paragraphs (a) and (b) of the prayer for relief. In paragraph (c) of the prayer for relief the petitioner seeks to compel the turnover of more than $7,000, constituting a segregated fund in the hands of the respondent. The latter claims the right to use these moneys to recoup expenditures for repairs made between May, 1932, and January, 1933. The title company has been in default under its guaranty since November, 1932. While in default it may not recoup for previous expenditures out of rents collected by it as agent for the mortgagee. The amount of the default exceeds the amount which is sought to be recouped. In view of the conclusion reached it becomes unnecessary to consider the effect of the title company’s purchase of the property in the name of its subsidiary in connection with a partial foreclosure of the mortgage, and it is likewise unnecessary to consider the effect of the subsequent taking of title in the name of the title company. (See Fearey v. Williams, 72 F. [2d] 263, 265.) The petition will accordingly be granted in all respects except that the Superintendent will be permitted to retain a service fee of $165.

Settle order.  