CITIZEN'S SAVINGS BANK v. FOSTER

CITIZEN’S SAVINGS BANK v. FOSTER. N. Y. Supreme Court, First District, Special Term and Chambers ; January, 1889. Foreclosure ; subrogation of junior mortgagee.'] On the foreclosure of a senior mortgage, a junior mortgagee, upon paying in full the mortgage under foreclosure with interest and costs, is entitled to an assignment of the mortgage and the judgment for ' sale ; and this relief may be granted on motion, notwithstanding an actual tender has not been made before moving. Motion to compel the assignment of a mortgage. The Citizen’s Savings Bank brought suit against Charles J. Foster, Conrad Stein, John B. Hillyer, first, second and third mortgagees, respectively, and others, to foreclose a mortgage, made by Foster to the plaintiff. The premises were sold under the judgment in the action, but the purchase was not yet completed. It appeared upon this motion, from the affidavit of the attorney for the defendant Hillyer, that the purchaser, at the sale, was negotiating with the Central Trust Company for the purpose of obtaining a loan, which that company was willing to make, providing that it could obtain an assignment of the first mortgage. The affidavit also showed that Hillyer, at the time of the sale of the premises, refrained from bidding because of his understanding that the first mortgage was to be replaced by this loan. The defendant, Hillyer, now moved that the plaintiff be directed to assign the mortgage held by it, to the Central Trust Company, upon payment of the amount of its claims so secured. Theodore F. Miller, for the motion. John W. Firs son, opposed. This rule, which doubtless is in the discretion of the court, is agreeable to the principle upon which courts of equity have always sustained bills to redeem, when an offer to redeem is made in the bill, and without requiring, as would be necessary at law, a previous tender. See also the recent case of Moore v. Crawford, 130 U. S. 122, when the court established a trust, and decreed a conveyance on condition of the payment of the balance of the purchase-money by deduction from rents and profits, notwithstanding there was no offer in the, bill nor any tender. [MAJORITY — Patterson, J.] Patterson, J. On considering all the circumstances disclosed in these papers it seems to me the court should interfere for" the protection of the junior mortgagees. The relief sought may be granted on motion (Welling v. Ryerson, 94 N. Y. 103). All that the first mortgagee ought to ask is the payment in full of its mortgage interest and costs, and those amounts being paid the third mortgagee is entitled tq an assignment of the mortgage and decree to protect his rights. The only answer made to the application is that an actual tender lias not been made by the third mortgagee, but that is not a controlling circumstance to defeat this application as one virtually made by Bauer in the interest of the moving party. There is ho substantial reason given why the relief here sought should not be allowed, and the motion is granted on condition that payment of the first mortgage in full, with, all accumulations of interest, costs and allowances, and $10 costs of this motion, be made within three days after the entry of the order hereon. Ordered accordingly. The order as entered [omitth.-g formal parts] was as follows: Ordered that the said motion be granted as follows:—That" the sale heretofore made to Moritz Bauer be and the same is hereby set asidé, and the plaintiff, the Citizen’s Savings Bank, is hereby directed to assign; without recourse to the Central Trust Company of the City of Mew York, the bond and mortgage set forth in the complaint and the decree herein, upon payment to the plaintiff or its attorney, either in cash or by certified check, of the full amount, with interest and costs and allowance due under the decree herein, and also upon payment of the referee’s fees and disbursements herein; provided, however, the payments aforesaid be made as aforesaid within five days from the entry of this order, together with ten dollars costs of this motion; otherwise, the said motion is denied.