Majority
p. 362(27 Misc. Rep. 121.) CROMWELL et al. v. FOSTER et al. (Supreme Court, Special Term, New York County. April 4, 1899.)
Headnote
Mortgages—Foreclosure—Answer oe Subsequent Mortgagee.Where the answer of a subsequent mortgagee in a foreclosure suit, demanding that his mortgage be next satisfied from the surplus, was served only on the defendants vvho had appeared, and did not show that there were no other lienors entitled to priority, it'was insufficient to entitle him to the relief demanded.
Action by Sarah. Louise Cromwell and another against Arthur J. Foster and others. Motion by plaintiffs for the appointment of a referee in foreclosure proceedings.
Granted.
Bowers & Sands, for the motion.
Samuel Strasbourger, opposed.
In an action for foreclosure, a subsequent mortgagee sets up his mortgage, by answer, and demands that it be payable next from the surplus. Service of this answer was made upon all defendants who appeared in the action, and they have failed to take issue. It may be that lienors in priority to the answering defendant have failed to appear, yet this would not bar their right to priority in the surplus after satisfaction of plaintiff’s lien; and accordingly the answering defendant has not shown himself to be entitled
p. 363
to the direction which he asks. See Code Civ. Proc. § 521. His remedy is against the surplus.
The motion of the plaintiff is therefore granted, and the application of the defendant Strasbourger denied, with $10 costs. Settle order on notice.