Mutual Life Insurance v. Newell — 28 N.Y.S. 913

Majority

p. 913

MUTUAL LIFE INS. CO. OF NEW YORK v. NEWELL et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Headnote

Mortgages—Rights of Mortgagee—Payment of Taxes afte t Forechorore The right of a mortgagee to a lien for taxes paid to protect his interest depends not on covenants in the bond or mortgage, but on the general principles of equity, and it is not affected by the merger of the bond and mortgage in a judgment of foreclosure.

Appeal from special term, Westchester county.

Action by the Mutual Life Insurance Company of New York against Darius C. Newell and another to foreclose a mortgage. From an order amending the judgment of foreclosure so as to include taxes paid by plaintiff after the judgment was entered, Albert C. Benedict, grantee of the equity of the mortgaged land, appeals. Modified.

Argued before BROWN, P. J., and PRATT, J.

R. E. & A. J. Prime & Burns, for appellant Albert C. Benedict.

Miller & Wells (James A. Briggs, of counsel), for respondent.

The right of the mortgagee to protect his interest by payment of taxes, which become a superior lien, depends not upon the covenants in the bond or mortgage, but upon the general principles of equity. It follows that the merger of the bond and mortgage in the judgment has no effect upon the right. The general powers of the court are ample to make such corrections in the judgment as the changed conditions render necessary. We observé that a small amount paid by the mortgagee for insurance against fire was allowed at special term. The order appealed from should be modified by striking out the sum allowed for insurance, and, as thus modified, affirmed, with costs.