Waterbury v. Tucker & Carter Cordage Co.

Martin, J. The mortgage in suit was given to Julia Waterbury to secure the sum of one hundred thousand dollars loaned by her to the Tucker & Carter Cordage Company to pay a prior mortgage upon the mortgaged premises for that amount. After her death John S. Ellis, who was the executor of her estate, assigned the mortgage to the plaintiffs as executors of the estate of Lawrence Waterbury, deceased. The consideration for the assignment was the amount secured by the mortgage, which Avas paid by canceling a debt of eiglity-five thousand dollars which the estate of Julia Waterbury Avas owing to the estate of Lawrence Waterbury, and the payment to the executor of her estate of the remainder in cash. That the estate of LaAvrence Waterbury acquired a valid title to this mortgage Ave have no doubt. Mor Avas there evidence sufficient to establish an estoppel against the plaintiffs, as *616 representatives of the estate of Lawrence Waterbury. Therefore the court properly held that the plaintiffs were entitled to a judgment of foreclosure and sale of the mortgaged premises, and the judgment should be affirmed. The next point we are asked to consider relates to the validity of the order overruling the defendants’ exceptions to the report of the referee upon the question, whether the mortgaged premises should be sold together, or, in parcels. The referee, to whom that question was referred, rejiorted that the premises could not be sold in parcels without injury to the interests of the parties, that, in his opinion, the mortgaged premises, fixtures, machinery and appurtenances should be sold together as one parcel, and stated fully the reasons for his opinion. An examination of his report, and of the facts upon which it is based, renders it obvious that the property could not be disposed of in parcels without serious injury to the parties. We are of the opinion that the court properly overruled the defendants’ exceptions and confirmed the report of the referee as to the manner in which the premises should be sold. This leaves for examination the question of the propriety of the order granting the plaintiffs an additional allowance of two thousand dollars. If any authority for this order exists it must be found in section 3253 of the Code of Civil Procedure. That section, as it stood when this order was granted, provided: “ In an action, brought to foreclose a mortgage upon real property; or for the partition of real property; or in a difficult and extraordinary case, where a defense has been interjjosed, in any action; the court may also, in its discretion, award to any party a further sum, as follows: 1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any other case, specified in this section, a sum not exceeding five per .centum upon the sum recovered, or claimed, or the value of the subject-matter involved.” The claim of the appellants is that the court- had no authority to grant an extra allowance *617 for an amount exceeding two hundred dollars. They insist that, in an action to foreclose a mortgage, section 3253 plainly restricts the amount which the court may grant as an extra allowance, to the sum of two hundred dollars. It has several times been held that in an action for the foreclosure of a mortgage upon real property, the allowance which may be granted is limited to that amount, although the case may be difficult and extraordinary. (Hunt v. Chapman, 62 N. Y. 333, 338; Ferris v. Hard, 15 N. Y. Civ. Pro. R. 171; O'Neill v. Gray, 39 Hun, 566; Rosa v. Jenkins, 31 Hun, 384.) The plaintiff's motion was based upon the ground that the case was a difficult and extraordinary one where a defense had been interposed. The affidavit upon which it was granted stated facts from which the Special Term was justified in finding that the case was both difficult and extraordinary. Hnder section 3253 there are three instances where the court may, in its discretion, award an additional allowance of costs. Such an allowance may be made in an action to foreclose a mortgage, but in such a case the sum that may be awarded cannot exceed two and one-half per centum upon the amount due of claimed to be due upon the mortgage, nor the aggregate of two hundred dollars. An additional allowance may also be granted in an action for the partition of real property, or may be granted in any action where a defense is interposed and the case is difficult and extraordinary. In cases which are specified in that section, other than for the foreclosure of a mortgage, the allowance cannot exceed five per centum upon the sum recovered, or claimed, or the value of the property involved. The amount that may be awarded in the latter cases is also further limited by section 3254, so that the allowance cannot exceed the sum of two thousand dollars. If the sole purpose of this action had been to foreclose a mortgage upon real property, there would seem to be no doubt that the amount which might be properly allowed could not exceed two hundred dollars. As it wTas, however, an action to foreclose a mortgage upon both real and personal property, it is said that that limitation as to costs has *618 no application to this case. While the language employed in subdivision one of section 3253 is sufficiently broad to include a mortgage upon personal as well as real property, still it may be when the whole section is read together that the word “ mortgage ” should be construed as referring only to a mortgage upon real estate. But be that as it may, it is obvious that the chief purpose of this action was to foreclose a mortgage upon real property and its fixtures, and it cannot be fairly said that it was an action to foreclose a mortgage on personal property, and, hence, is not within the decision in Huntington v. Moore (59 Hun, 351), where it was held that an action to foreclose a chattel mortgage was not within the limitation contained in that subdivision. Thus we are constrained to hold that this action falls within the provision of section 3253, which limits the additional allowance in an action to foreclose a mortgage to the sum of two hundred dollars. If the result we have reached upon this question is correct, it follows that the judgment and order appealed from should be modified by deducting from the amount of such judgment and order the sum of eighteen hundred dollars, and the judgment and order as thus modified should be affirmed, without costs to either party. All concur. Judgment accordingly