In the Matter of the Application of John F. Byrne for Leave to Sue on Bond of John Van Dolsen and Others. William F. Smith and Clement H. Smith, Appellants; John F. Byrne, Respondent

In the Matter of the Application of John F. Byrne for Leave to Sue on Bond of John Van Dolsen and Others. William F. Smith and Clement H. Smith, Appellants; John F. Byrne, Respondent. Xeave to sue upon the bond while an action for the foreclosure of the mortgage is pending—only granted in exceptional circumstances. Where a mortgagee, after the mortgagors have conveyed the premises to persons who assumed and agreed to pay the mortgage, brings an action to foreclose the mortgage, making parties thereto the mortgagors and their grantees and asking for a deficiency judgment against them, an order permitting the mortgagee to bring an action upon the bond accompanying the mortgage should not be granted during the pendency of the foreclosure action and before the sale of the premises therein except under extraordinary and exceptional circumstances. Appeal by William F. Smith and another from an order, of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1902, as resettled by an order entered in said ■clerk’s office on the 5th day of January, 1903, granting the petitioner leave to sue on the bond accompanying a mortgage on real ■estate. George Hahn, for the appellants. Austin E. Pressinger, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: .The appellants executed a mortgage upon their premises to secure the payment of their bond bearing even date therewith. They subsequently sold the premises, their grantees assuming and agreeing to pay the mortgage. On the 25th day of November, 1901, the petitioner, then being the owner of the bond and mortgage, began a foreclosure action making the appellants and their grantees parties and praying for a deficiency judgment against them. The appellants were served with the summons and complaint and • they defaulted in pleading. The foreclosure action is still pending and the premises have not been sold. The grounds upon which the petitioner asks the court to exercise its discretion favorably on his application for leave to sue on the bond are that he has been unable to effect service upon one of the defendants’ grantees, that the interest on a senior mortgage has not been paid, but it appears that payment has been extended until the 15th day of February, 1903, and that the premises have so-depreciated in value that there is little probability of their bringing sufficient to pay the amount of the prior mortgage together with costs and expenses. The question of the adequacy of the security of the premises for the indebtedness secured by the petitioner’s mortgage was controverted. The petitioner having instituted an action to satisfy the debt out of the security, has no absolute right to maintain an action at law upon the bond. He must first obtain leave of the court (Code Civ. Proc. § 1628) upon notice; and even then, if the appellants had not been made parties to the foreclosure and the premises had been sold and a deficiency judgment entered, it would be necessary to show a sufficient and satisfactory equitable reason for such leave. (Matter of Marshall, 53 App. Div. 136; Equitable Life Ins. Society v. Stevens, 63 N. Y. 341.) In the latter case the court say that the rule in all cases of an application for leave to sue on such a bond after a foreclosure action has been commenced, is that the court may grant or refuse the leave in the exercise of a sound discretion according to the equities of the case. In this case it would seem that sound equitable discretion requires that the application should be denied, for otherwise the petitioner may proceed and obtain a judgment against the appellants for costs in each case, the action upon the bond being an independent cause of action, besides the trouble and annoyance of the dual litigation. (Equitable Life Ins. Society v. Stevens, supra; McKernan v. Robinson, 84 N. Y. 105.) By the express terms of the Code (Code Civ_ Proc. § 1630), if the petitioner brought an action on the bond first, he could not maintain an action on the mortgage until the return of execution unsatisfied in the first action. By analogy it would seem, unless in extraordinary and.exceptional circumstances at least, that the petitioner should proceed with his foreclosure action and sell the property, and then, if necessary, he may enter a deficiency judgment, and there will be no necessity of any action upon the bond. (Engle v. Underhill, 3 Edw. Ch. 249; Matter of Moore, 81 Hun, 389.) As to these appellants the premises are the primary security (Gottschalk v. Jungmann, No. 1, 78 App. Div. 171) and that course will be equitable. We think it clear that this order should not have been granted while the foreclosure action was pending. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Van Brünt, P. J.,. Ingraham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.