(dissenting). For the reasons stated in the dissenting opinion in Matter of Mortgage Corporation of New York (Ohlbaum) (263 App. Div. 627), decided herewith, we dissent and vote to affirm. In this case the owner has been voluntarily paying to this petitioner, a second mortgagee, the sum of $1,000 a year in reduction of the principal of its second mortgage, which has been reduced from $22,000 to $9,000 by prior amortization payments. The $63,000 first mortgage has been reduced to $45,250. The respondents have a very substantial equity in the property. Extensive improvements have been made. The property has been economically managed and kept in excellent condition. Petitioner’s second mortgage, drawing interest at six per cent, would seem to be amply protected.
While we think the Special Term properly denied the owner’s application that the entire surplus should be retained so as to pay dividends to the stockholders, for the reasons stated in Matter of Mortgage Corporation of New York (Ohlbaum) (supra), and on all the facts disclosed, we cannot say that the learned Special Term abused his discretion in directing payment of $500 to the second mortgagee instead of the whole surplus of $1,339.89.
The order appealed from should in all respects be affirmed, with twenty dollars costs and disbursements.
Cohn, J., concurs.
Order modified to the extent of increasing the amount directed to be paid to the second mortgagee from $500 to $1,339.89, and as so modified affirmed, witUtwenty dollars costs and disbursements to the appellant. Settle order on notice.