Gilmore v. Shuttleworth

Headnote

Gilmore v. Hirschman, 171 App. Div. 594 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 21, 1916, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action .to foreclose a mortgage upon real property. Plaintiff had a mortgage on a plot of land in Ravenswood, fronting on the East river; the city had instituted condemnation proceedings to take a strip of it for a street; an award of $32,000 for the land taken had been made; an assessment made for $16,672 on benefits on the remaining portion had been set aside, and a re-assessment ordered; by means of alleged false representation, appellant obtained from plaintiff a release of her lien and collected the award. The judgment, in the usual form of a decree in foreclosure, also vacated the release as. between the parties (preserving it as to the city, which had parted with its money in good faith), restored the plaintiff’s hen on the net proceeds of the award, and there being thus two sets of security for her mortgage, to wit, the land retained, and the net proceeds of the land condemned, marshalled those securities by applying the rule as to inverse order of alienation, and directed that the land retained be first sold and in case the proceeds did not yield enough to

pay plaintiff’s mortgage, interest and costs, that the defendant should pay the deficiency to the extent of the amount in appellant’s hands as the net proceeds of the award.