GIEGERICH, J.[ 1 ] It is true that under the provisions of the real property law (Consol. Laws 1909, c. 50), relating to the recording of instruments, the deed to the claimant Dreyer is to be regarded only as a mortgage, and that by recording it as a deed and without at the same time recording the defeasance agreement he accomplished nothing. Real Property Law, § 320. This, however, is not a sufficient reason for holding that, by failing to record both papers as a mortgage and to pay the mortgage recording tax, the grantee brought himself within the provisions of section 258 of the tax law (Consol. Laws 1909, c. 60), forbidding the enforcement of any mortgage upon which the tax has not been paid. The definitions included in section 250 of the tax law do not cover such a case, and as the law is one relating solely to taxation its provisions must be strictly construed.
[2] The referee’s report is therefore confirmed, except in respect to the disposition of the expenses of the reference. Such expenses should first be paid from the fund, after which the claims of Henry H. Dreyer and Bertha Sonnabend, respectively, should be paid, and the balance of the moneys should then be turned over to the trustee in bankruptcy.
Motion disposed of as indicated. Settle order on notice.