v.
Hall, 191 App. Div. 610 ;
Potter v.
Hodgman, 81 App. Div. 233 , affd. 178 N. Y. 580 ; 2 Scott, Trusts, § 191), except as it may be specifically given by court order or statute. It is our further opinion, however, that, insofar as the proceeds from the loan made by the plaintiff to Mr. Pelkofski and secured by the mortgage in issue were used to satisfy and discharge of record the prior mortgage held by the National Bank of Kings Park and a lien against the subject property, the plaintiff is entitled to be subrogated to the rights of the prior mortgagee under the well-established principle of equitable assignment by subrogation
(Thrift v. Michaelis, 259 N. Y. 302 ;
Home Owners’ Loan Corp. v. Tobin, 175 Misc. 316 ). The doctrine of equitable subrogation is dependent upon the facts and circumstances of the particular case and is founded upon principles of natural justice and equity
(Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137 ). In this case, the interest of the defendant Genevieve Pelkofski in the trust property was subject and subordinate to the mortgage lien of the National Bank of Kings Park. The defendant has no superior, intervening equity in the property which would be adversely affected by subrogating plaintiff to the prior mortgagee’s rights. Moreover, even though the mortgage executed by Mr. Pelkofski was ineffective for the purpose of security, the proceeds of the loan were used to discharge a prior incumbrance and the plaintiff is entitled to be subrogated to the lien of the incumbrance so discharged (cf.
Ingram v.
Jones, 47 F. 2d 135 , 140). Equity will preserve for the benefit of the plaintiff the senior incumbrance which she caused to be discharged. Moreover, under the facts here present, which permit of the application of the equitable doctrine of subrogation, we further conclude that the plaintiff is also entitled to a priority for the additional amounts paid out of the mortgage proceeds or otherwise paid by the plaintiff for the real estate taxes which were due and owing on the subject premises and for the fire insurance premiums paid in connection therewith (cf.
3105 Grand Corp. v. City of New York, 288 N. Y. 178 ). Subrogation is a highly favored remedy and the courts are inclined to extend rather than restrict its application
(Bonham v.
Coe, 249 App. Div. 428 , affd.
276 N. Y. 540 ). We would not extend the doctrine, however, to the payment of the two loans which were personal obligations and did not affect the defendant’s interest in the real property as created by the trust agreement. Accordingly, it is our opinion that a judgment be entered declaring that the plaintiff has a lien upon the subject premises superior to any right, title or interest of the defendant Genevieve Pelkofski, to the extent that payment has been made to satisfy and discharge the prior mortgage which was held by The National Bank of Kings Park, and to pay the real estate taxes upon the property and the fire insurance premiums thereupon, which amount is to be ascertained at Trial Term; that the premises be sold to satisfy and discharge said lien; and for such other relief to which the plaintiff may be entitled. Brennan, Babin and Hopkins, JJ., concur; Christ, Acting P. J. and Benjamin, J., concur in part and dissent in part, with the following memorandum: We concur with that part of the majority’s holding which gives plaintiff priority over defendant Genevieve Pelkofski to the extent that plaintiff’s loan to defendant Joseph Pelkofski was used (a) to satisfy a prior mortgage held by the National Bank of Kings Park, (b) to pay real estate taxes, and (c) to pay fire insurance premiums. But we dissent from that part which refuses to grant a similar priority to plaintiff with respect to the use of the moneys she loaned for the repayment of the $10,195 bank loan and the $15,210 Stoothoff loan, both of which had been made to defendants Joseph Pelkofski and Genevieve Pelkofski jointly. In our opinion, the procurement of the loan from plaintiff in order to pay off all of the above-mentioned obligations was, in effect, a total refinancing of the obligations of both Joseph and Genevieve Pelkofski, with the benefits running to