Jacobs v. Van Brunt Realty Corp.

The question between plaintiff and the defendant AUinson is upon the priority of the two mortgages. The complaint alleges that the lien of defendant’s mortgage is subject to that of plaintiff, and asks to have defendant’s rights foreclosed. On the other hand the claim of defendant is that the mortgage is a superior lien to that of plaintiff for two reasons: First, because plaintiff’s mortgage, having been once paid, cannot be revived (Mead v. York, 6 N. Y. 449; Bogert v. Bliss, 148 id. 194), and secondly, because defendant’s assignor, having taken the mortgage from the Willoughby Realty Company, the then owner of the equity of redemption, and also, under plaintiff’s claim, the holder of plaintiff’s mortgage unmerged, under the representation that defendant’s mortgage was a first lien, is entitled to maintain that position against plaintiff under the doctrine of estoppel. These questions can be litigated between the present parties to the record, under the present pleadings, and judgment can be entered so framed as to determine the controversy between the parties without prejudice to the rights of others. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ., concurred.