Supreme Court, Appellate Division, Second Department, New York.
The DIME SAVINGS BANK OF NEW YORK (formally known as The Dime Savings Bank ofBrooklyn), Plaintiff,v.Joseph MELOHN et al., Appellants;Max Britvan, Respondent.
December 15, 1980
Dreyer & Traub, New York City (Samuel Kirschenbaum and Sheila F. Pepper, New York City, of counsel), for appellants. Sanders & Gutman, P. C., Brooklyn (Robert Gutman of counsel), for respondent.
In a mortgage foreclosure action wherein the receiver moved to settle his account and defendants filed objections and sought to surcharge the referee, defendants appeal from an order of the Supreme Court, Kings County (Brownstein, J.), dated May 1, 1980, which held the receiver's motion in abeyance pending the report of a referee, appointed by it pursuant to CPLR 4317 (subd. (b)), to "hear and determine". Order modified, on the law, by deleting therefrom the word "determine" and substituting therefor the word "report". As so modified, order affirmed, with $50 costs and disbursements payable by the appellants to respondent. On the argument of this appeal the parties agreed that given Special Term's evident desire to retain jurisdiction over this matter, the proper reference would have been one "to hear and report" (see CPLR 4311), since a reference to "hear and determine" divests the court of jurisdiction over an action (see CPLR 4301).
TITONE, J. P., and LAZER, COHALAN and WEINSTEIN, JJ., concur.
436 N.Y.S.2d 992 (Mem), 79 A.D.2d 647
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