Goldberg v. Feltmans of Coney Island, Inc.

• Decision Date: 07 July 1955
• Citation: 144 N.Y.S.2d 250
• Parties: Max GOLDBERG, Plaintiff, v. FELTMANS OF CONEY ISLAND, Inc., Nathan Faber Co., Inc., Charles R. Miller, J & M Enterprises, Inc., Isidore Rubenstein, Alex Silverman, Morris Joffe, Gerri Bartoloni, Joseph Schubert, Dora Misurac, Irving Shapiro, Betty Dusling, Garto Bros. Inc., William Sandman and Abe Sandman, copartners, d/b/a Sandman Brothers, Edward Girdes, G. G. Enterprises, Inc., O. K. Miniature Trains, Inc., and The People of the State of New York, Defendants.
• Court: New York Supreme Court

Page 250

144 N.Y.S.2d 250

Max GOLDBERG, Plaintiff, v. FELTMANS OF CONEY ISLAND, Inc., Nathan Faber Co., Inc., Charles R. Miller, J & M Enterprises, Inc., Isidore

Rubenstein, Alex Silverman, Morris Joffe, Gerri Bartoloni,

Joseph Schubert, Dora Misurac, Irving Shapiro, Betty

Dusling, Garto Bros. Inc., William Sandman and Abe Sandman,

copartners, d/b/a Sandman Brothers, Edward Girdes, G. G.

Enterprises, Inc., O. K. Miniature Trains, Inc., and The

People of the State of New York, Defendants.

Supreme Court, Special Term, Kings County, Part I.

July 7, 1955.

Jacob K. Javits, Atty. Gen., for State Tax Commission, Samuel S. Backlar, Senior Atty., New York City, of counsel.

Sydney D. Robins, New York City, for claimant.

Morris K. Siegel, New York City, for Reliance Beef Corp., a judgment creditor.

Harry Malter, New York City, for Coca-Cola, claimant, Leonard P. Moore, U. S. Atty., Eastern Dist. of New York, Brooklyn, William A. Dubrowski, Asst. U. S. Atty., New York City, of counsel.

OLLIFFE, Justice.

This is a motion to confirm the report of the referee, as amended, directing distribution of surplus moneys arising out of an action in foreclosure. It is also requested that provision be made for the payment of a counsel fee in connection with this application to confirm, and for costs, referee's fees and expenses of this reference.

The referee finds that the claims of the claimants, Reliance Beef Corporation, Coca-Cola Bottling Company, Inc., William Pinsker Company, Inc., Herman Blatt and Coney Island Enterprises, Inc., have no priority as to each other with respect to the surplus moneys involved herein and are entitled to have distributed among them pro rata the balance of such surplus moneys which will remain after the payment of disbursements, referee's fees, expenses of this proceeding, costs as may be allowed, the priority claims of the United States of America and the State Tax Commission of the State of New York.

There is no controversy with respect to the priority of the claims of the United States of America and the State Tax Commission of the State of New York.

Reliance Beef Corporation urges that its claim is entitled to priority over the remaining creditors. The court finds no merit in such contention. The applicable rule is succinctly set forth in Warwick Savings Bank v. Long Island Chapter K. C. Society Service, Inc., 253 App.Div 276, at page 277, 1 N.Y.S.2d 877, 878, as follows: 'Judgments docketed prior to the delivery of the referee's deed are liens on the realty that pass to the surplus moneys, and are payable in order of priority of docketing. Nichols v. Howell,...