(dissenting). Superior Reign Co., Inc., on March 1, 1929, commenced an action to foreclose a third mortgage upon premises 391-393 Broadway. Neither the first nor second mortgagee was made a party to that action. On the same day a receiver was appointed of the rents of the premises, but without authority *429to pay the running expenses. A resettled order was made granting the receiver authority to pay the usual and necessary running expenses of the premises, but excluding prior mortgage interest or installments. The defendant, appellant herein, consented to the making and entry of this resettled order, and placed its indorsement thereon.
Subsequently (May 3, 1929) the plaintiffs commenced an action to foreclose their second mortgage on the same property. The court then made an ex parte order extending the first .receivership for the benefit of these plaintiffs, directing the payment of “ all interest which is or may hereafter become due and payable on the first mortgage * * * out of such rents, issues and profits of said premises as are now or may hereafter come into his hands * * * heretofore or hereafter received by him.”
Superior Reign Co., Inc., made a motion to strike out the words “ as now are ” and “ heretofore;” or to eliminate the whole paragraph and substitute a paragraph directing the receiver to pay out of rents received after May 7,1929, the date of the order. This motion was denied, and Superior Reign Co., Inc., is appealing from that order.
The receiver then made a motion for instructions as to the disposition of the funds “ heretofore ” collected by him, and particularly whether they might be used for taxes, penalties, etc. The court then made an order dated June 13-, 1929, directing him to pay taxes, etc., as running expenses out of moneys received since March 14, 1929, the day on which the receiver was appointed for Superior Reign Co., Inc., on their third mortgage foreclosure.
Superior Reign Co., Inc., appeals from so much of that order as permits the receiver to include the real estate taxes as a “ running expense ” of the property.
The appellant having consented to the order of March 14, 1929, granting authority to the receiver to pay the “ úsual and necessary running expenses,” we think he cannot now object to the payment of taxes by the receiver since they constitute a “ necessary running expense.”
Superior Reign Co., Inc., contends that the receiver should apply the moneys received by him after May 7,1929, in the interests of the second mortgagee and not the moneys received prior thereto; that the receiver was appointed for the benefit of the third mortgagee and the fund is not subject to the provisions of the prior order to pay taxes for the benefit of the second mortgagee. But since the taxes are a necessary running expense we think they were properly payable out of rent under the order of March 14, 1929.
*430The orders appealed from should, therefore, be affirmed, with ten dollars costs and disbursements to the respondents.
Dowling, P. J., concurs.
Order appealed from entered May 21, 1929, reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order appealed from entered June 13, 1929, reversed and receiver’s prayer for instructions granted in accordance with opinion.