Guilford v. Jacobie

PUTNAM, J. 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 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.