Merchants National Bank, as Trustee under a Certain Mortgage Dated July 1, 1922, and Executed by Middletown Combined Building Company, Inc., to Secure the Payment of Its First and Refunding Mortgage, Seven Per Cent, Twenty-year Gold Bonds, Respondent, v. Middletown Combined Buildings Company, Inc., Appellant, and Odell S. Hathaway, Respondent, Impleaded with Others, Defendants

Merchants National Bank, as Trustee under a Certain Mortgage Dated July 1, 1922, and Executed by Middletown Combined Building Company, Inc., to Secure the Payment of Its First and Refunding Mortgage, Seven Per Cent, Twenty-year Gold Bonds, Respondent, v. Middletown Combined Buildings Company, Inc., Appellant, and Odell S. Hathaway, Respondent, Impleaded with Others, Defendants. Decision and order amended, 242 App. Div. 663. [MAJORITY] Order modified by striking out the provisions for a deficiency judgment and as so modified unanimously affirmed, with costs to appellant, and the deficiency judgment docketed vacated. The deficiency judgment being premature, leave to apply for such a judgment after the receiver’s accounts shall have been settled is granted, leaving it to the court at that time to pass upon all the equities involyed in reaching the amount of the deficiency judgment that should be had, if the plaintiff be entitled to any such judgment. Present — Lazansky, P. J., Kapper, Carswell, Scudder and Tompkins, JJ.