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Guilford v. Jacobie

23 N.Y.S. 462 Court N.Y. Gen. Term Decision date 1893-05-09 English

Delivered by PUTNAM, J.

Contents

Majority

p. 462
(69 Hun, 420.)
GUILFORD v. JACOBIE et al.
(Supreme Court, General Term, Third Department.
May 9, 1893.)

Headnote

1. Foreclosure of Mortgage—Application of Proceeds.
In an action to foreclose a mortgage, a prior mortgagee, whose mortgage is past due, being made a party defendant, it is proper to order payment of the prior mortgage out of the first proceeds of the sale, before applying any part thereof to the payment of plaintiffs mortgage.
3. Same—Prior Mortgagee as Party.
It Is proper for plaintiff in an action to foreclose a mortgage to make a prior mortgagee a party defendant.
3. Same—Effect of Proceedings by Prior Mortgagee.
Where, after the commencement of an action to foreclose a mortgage, a prior mortgagee sues to foreclose his mortgage, plaintiff may nevertheless proceed in his action, and bring the premises to a sale.
Appeal from special term.
Action by Samuel T. Guilford against Clara M. Jacóbie, impleaded with another, to foreclose a mortgage. From an order that a prior mortgage of the impleaded defendant be paid out of the first proceeds of sale, plaintiff appeals.
Affirmed.
Argued before MAYHAM, P. J., and PUTNAM, J.
King & Ashley, (H. Prior King, of counsel,) for appellant.
J. H. Bain, for respondent.

The order should be affirmed. The defendant Jacobie’s mortgage is past due. There is no dispute as to the amount secured by it, and the judgment of which plaintiff complains provides for its payment out of the first proceeds of the sale, after deducting the referee’s fees and expenses thereon, before any part of such proceeds are received by plaintiff on account of his mortgage debt or costs. It was proper for plaintiff to make the prior mortgagee a party defendant that the amount of her mortgage might be determined and paid out of the proceeds of the sale, and its lien discharged. Metropolitan Trust Co. v. Tonawanda, V. & C. R. Co., 43 Hun, 524 ; Holcomb v. Holcomb, 2 Barb. 20 ; Vanderkemp v. Skelton, 11 Paige, 29; Western Ins. Co. v. Eagle Fire Ins. Co., 1 Paige, 284; 3 Rum. Pr. 111; Bank v. Goldman, 75 N. Y. 132 .

It has been held that the pendency of plaintiff’s action to foreclose his mortgage was not a legal defense to a subsequent action by defendant to foreclose her prior mortgage. Adams v. McPartlin, 11 Abb. N. C. 369 . But such subsequent action does not prevent plaintiff from proceeding in this case, and bringing the mortgaged premises to a sale under the judgment properly entered herein, and carrying out the provisions of said judgment. The question whether defendant Jacobie should be allowed, in addition to

p. 463
the amount on her mortgage for principal and interest, the costs, and disbursements incurred in her (unnecessary) action to foreclose her mortgage, was one addressed to the discretion of the court below. Order affirmed, with costs and printing.

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