The petitioner makes application for an order directing the respondent to pay to the m yrtgagee the surplus income of certain mortgaged property and for other relief authorized by section 1077-c of the Civil Practice Act. An action, however, instituted by the petitioner to foreclose the mortgage is now pending undetermined.
A consideration of the provisions of section 1077-c of the Civil Practice Act leads to the conclusion that this proceeding may not be maintained during the pendency of a foreclosure action. By its very terms, section 1077-c of the Civil Practice Act contemplates that such an application be made before foreclosure, for it is there provided that in the event of a default for thirty days in complying with the order which may be made thereunder, an action to foreclose may then be maintained. The pendency of foreclosure proceedings and resort to the relief afforded by section 1077-c of the Civil Practice Act are inconsistent remedies not to be applied simultaneously. The purpose of the statute was to enable a mortgagor to obtain relief where foreclosure was not permitted. (Chase Nat. Bank v. Guardian Realties, Inc., 283 N. Y. 350, 361, 363.)
Accordingly the application is denied.