
    Angelo Dicianni, Respondent, v. John E. Wrong and Others, Defendants, Impleaded with Nathan Gelman, Appellant.
    Fourth Department,
    December 18, 1928.
    
      
      Samvel B. Darlich [Philip A. Laing of counsel], for the appellant.
    
      Michael P. Geraci, for the respondent.
   Per Curiam.

The action is to foreclose a real estate second mortgage.

In the deficiency judgment, entered pursuant to an order confirming the supplemental report of the referee to sell, four items are contested by appellant:

Item I. The judgment directed the referee to pay taxes. The affidavits in the record convince us that under the direction of plaintiff the referee sold subject to taxes, which were paid before the filing of the referee’s final report. Inasmuch as the variation from the terms of the judgment was made by the referee under plaintiff’s direction, and was against his interest, the action of the referee was lawful. (Becker v. Muehlig, 221 App. Div. 512.) This item should be stricken from the deficiency judgment.

Item II. The referee paid $180 interest on the first mortgage. The judgment contained no direction to pay this interest; the complaint contained no allegation with reference to it; the order of reference and the referee’s report were silent on this - subject. The referee made no statement at the sale that he would either pay this interest out of the purchase price or sell subject to the lien of such interest. (Civ. Prac. Act, § 986.) Under such circumstances, the payment was unauthorized. The direction to the referee in the judgment to pay “ other charges which are or may become liens on the premises at the time of the sale ” does not ' authorize such a payment. (Bache v. Doscher, 67 N. Y. 429; Termansen v. Matthews, 49 App. Div. 163.) This item should be disallowed.

Item III. Costs were taxed and retaxed after notice to defendant under section 1535 of the Civil Practice Act. The bill of costs contained an item of $200 additional allowance, which had been granted in the judgment of foreclosure and sale, and a copy of the bill was served on defendant’s attorney before retaxation. Defendant did not contest any item in the bill of costs nor proceed under section 1536 of the Civil Practice Act, to review the taxation or retaxation. The award of an additional allowance in foreclosure actions is discretionary (Civ. Prac. Act, § 1513), a difficult and extraordinary ” case not being a requisite. And defendant has not appealed from the judgment of foreclosure and sale. Under such circumstances, defendant cannot be heard to contest this item.

Item IV. In his verified report of sale the referee (who was also the receiver) reported that the net amount of rents received was $177.52, and the report in this respect is substantiated by the affidavit of plaintiff’s attorney. Appellant’s claim that the net amount of rents collected and applicable was $325 is based solely upon his affidavit to the effect that plaintiff’s attorney had so stated. The item of $177.52 should, therefore, remain as inserted in the order.

The order and deficiency judgment should be modified as above indicated, and as modified affirmed, with ten dollars costs and disbursements to appellant.

All concur. Present — Clark, Sears, Crouch, Taylor and Edgcomb, JJ.

Order modified in accordance with the opinion and as modified affirmed, with ten dollars costs and disbursements to appellant.  