
    Realty Development Maintenance Corp., Respondent, v. Value Realty Corp., Appellant, et al., Defendants.
   In an action to foreclose a mortgage on real property, defendant Value Realty Corp. appeals, as limited by its notice of appeal and its brief, from so much of an order of the Supreme Court, Kings County, dated November 20, 1970, as, on reargument, adhered to the original decision conditionally granting said defendant’s motion to vacate its default in answering the complaint and to permit it to serve an answer. Order modified so as to add thereto a provision that the adherence to the original decision is amended so as to change the condition therein to one that defendant Value Realty Corp. shall pay all arrears on only the second and third mortgages on the subject premises. The answer must be served and said arrears payments must be made within 20 days after entry of the order hereon. As so modified, order affirmed insofar as appealed from, without costs. Upon the making of such payments and service of the answer, the judgment of foreclosure and the sale held under the judgment are vacated, without prejudice to any application which plaintiff may be disposed to make at Special Term, for inclusion of expenses incurred by it in connection with the sale, if and when it shall become entitled to taxation of costs in this action. In our opinion, it was an improvident exercise of discretion for Special Term to disregard substantial rent receipts in the hands of plaintiff and the receiver and to condition the vacatur of appellant’s default upon payment by appellant of arrearages on all three mortgages upon the subject premises. These receipts should be applied to the first mortgage payments and operating expenses. Munder, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.  