Boocock v. Wood — 128 A.D. 645

Majority

p. 645

Julia B. Boocock, Appellant, Respondent, v. Raymond S. Wood and Others, Defendants, Impleaded with Abner T. Bowen, Respondent, Appellant.

First Department,

November 20, 1908.

Headnote

Mortgage — subrogation of junior mortgagee on tendering amount due on prior lien — recourse against assignor — costs and extra allowance.

Although a junior mortgagee who tenders to. the holder of a senior mortgage then under foreclosure the amount due thereon, with costs of action, is entitled to an assignment of the prior lien in order to protect his own, he is not entitled to bind the senior mortgagee as to the amount due, and must accept an assignment without recourse to him and without covenants express or implied. Moreover, where he refuses to accept an assignment without recourse as tendered, and moves for an assignment without such clause, he is properly chargeable with an extra allowance of §100.

The court on motion may order a senior mortgagee to execute an assignment to a junior mortgagee on tender of the amount due.

Appeal by the plaintiff, Julia B. Boocock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th

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day of October, 1908, directing the plaintiff to assign to one of the defendants a certain bond and mortgage upon payment ' of the amount due on the mortgage.

Also an appeal by the defendant Abner T. Bowen from so much of said order as grants the plaintiff an extra allowance as a condition to snch assignment.

William H. Wadhams, for the plaintiff.

Ralph Q. Kelly, for the defendant Bowen.

This action was brought to foreclose a mortgage made by the defendant Wood to the plaintiff to secure payment of $16,250, dated November 22, 1905.- Subsequently Wood executed a mortgage to one Sire to secure the payment of $4,000, dated February 13, 1906, and on the same day Sire assigned this mortgage to the defendant Abner T. Bowen as collateral security for the payment of a promissory note made by Sire to Bowen to secure the sum of $4,000, which became due on the 13th of August, 1906, and is unpaid. Wood subsequently conveyed the. premises, subject to the mortgage, to one Foley, who executed to Sire another bond conditioned for the payment of $1,500 on the 8th of January, 1909. Sire assigned this second mortgage to Bowen on January 8, 1908, as security for a note for $1,569.84, made by Sire to Bowen, and Bowen commenced an action to foreclose these two mortgages. After this action was commenced Bowen made a demand on the plaintiff for an assignment of the bond and mortgage sought to be foreclosed-in this action to protect Iris rights as the owner- of the subsequent liens Upon the premises, and at thé same time tendered to the plaintiff the sum due upon her mortgage of $17,050.92, At the time of making the demand the plaintiff offered to deliver to Bowen’s attorney an assignment of the bond and mortgage sought to be foreclosed, which contained the following clause: “'This assignment is made without recourse to said party of the first part '(plaintiff) in any event, and without covenants express or implied.” Bowen refused to accept this assignment, demanding an unconditional -assignment without this clause, and then, made a motion to compel the plaintiff to assign the mortgage on payment of the

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amount due upon the mortgage. Upon that motion an order was entered requiring the plaintiff to assign the mortgage to Bowen upon payment of the amount due on the mortgage with interest to the date of payment and costs to be taxed by the clerk and an extra allowance of §100. The form of the assignment which the plaintiff was required to execute was annexed to the order, which was without the clause inserted by the plaintiff that the assignment was made without recourse. From that order the plaintiff appeals.

The power of the court to grant such an order upon motion seems to be sustained by Twombly v. Cassidy ( 82 N. Y. 158 ). The claim of the respondent is that he is entitled to have the plaintiff bound as to the amount due upon the said bond and mortgage, with which I do not concur. Plaintiff is the owner of the bond and mortgage and entitled to enforce it. She has commenced her action for that purpose, and Bowen as a subsequent lienor has requested an assignment of the bond and mortgage, so that he can be subrogated to the plaintiff’s rights to protect his subsequent . liens. As a subsequent lienor he would be entitled to be subrogated to whatever rights the plaintiff has to enforce this mortgage upon payment to the plaintiff of the amount due, and this assignment of the mortgage tendered to him would insure him this right. If he has any doubt about the amount due to the plaintiff on the mortgage, he could defend the action and compel the plaintiff to prove it. But all that he is entitled to upon payment of the mortgage is a transfer of whatever lien plaintiff has upon the property, and that is the only assignment he has a right to demand. (See Averill v. Taylor, 8 N. Y. 44 ; Citizen's Savings Bank v. Foster, 22 Abb. N. C. 425 .) Upon this appeal Bowen does- not insist that the acknowledgment of the assignment tendered to him was defective, and it would seem to be sufficient; and as the assignment tendered by the plaintiff assures to Bowen all that he has a right to have, the court below should not have required the plaintiff to execute any further assignment than the one already executed.

The order appealed from should, therefore, be modified by providing that upon Bowen’s tendering to plaintiff the amount due on the mortgage, with interest to the date of payment, $100 additional allowance, and the plaintiff’s costs and disbursements to be taxed "by the clerk, the plaintiff deliver to Bowen the bond and mortgage

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together with the assignment thereof theretofore tendered by the plaintiff, and that the plaintiff have ten dollars costs and disbursements of this appeal against Bowen personally.

There has also been argued an appeal by the defendant Bowen from so much of the order as grants plaintiff an extra allowance of $100. We think this was proper in view of the fact that the plaintiff had offered to ’ deliver to Bowen the only assignment that he was justified in demanding, and that the plaintiff should be indemnified for the expenses in prosecuting the action up to the time that the assignment was delivered.

\ It follows that so much of the order as grants the extra allowance should be affirmed, with-ten dollars costs arid disbursements

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements of this appeal'to plaintiff against defendant Bowen personally.

Cases cited

Averill v. Taylor 8 N. Y. 44 N.Y. p. 647