In the Matter of the Application of Title Guarantee and Trust Company, as Trustee, Respondent, Owner and Holder of a Certain Mortgage Affecting Property Situate in the County of Kings, State of New York, and Known as 475 Ocean Avenue, Borough of Brooklyn, City of New York, for an Order Directing the Payment of Surplus Income of Said Property to Apply Towards the Reduction of Any Past Due Principal of Said Mortgage or Permitting Foreclosure of Said Mortgage, Pursuant to the Provisions of Section 1077-c of the Civil Practice Act. Creslynn Holding Corporation, Appellant

In the Matter of the Application of Title Guarantee and Trust Company, as Trustee, Respondent, Owner and Holder of a Certain Mortgage Affecting Property Situate in the County of Kings, State of New York, and Known as 475 Ocean Avenue, Borough of Brooklyn, City of New York, for an Order Directing the Payment of Surplus Income of Said Property to Apply Towards the Reduction of Any Past Due Principal of Said Mortgage or Permitting Foreclosure of Said Mortgage, Pursuant to the Provisions of Section 1077-c of the Civil Practice Act. Creslynn Holding Corporation, Appellant. [MAJORITY] Appeal by a property owner, in a surplus-money proceeding under section 1077-c of the Civil Practice Act, from an order of the Supreme Court (a) allowing a trustee for mortgage certificate holders to reach an alleged surplus for a stated period, and (b) referring the question of the amount of such surplus to an official referee to hear and report. Order on reargument reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, without costs. The finding that the parties agreed that the examination of the owner’s books should be made for a period other than that prescribed in section 1077-c is without any support in the proofs, and the stipulation signed by the parties deprived the owner of the single objection that the proceeding, commenced after the stipulation was signed, was not timely, which objection was not raised by the owner. All other objections that could be raised in the proceeding were reserved to the owner in the stipulation. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.