143 N.Y.S. 755 | N.Y. App. Div. | 1913
When this court in April last (156 App. Div. 300) so far modified the judgment then under consideration as to reverse that portion of it which dismissed the complaint against the defendant Semenza, it was quite obvious and, therefore, understood by the court that said defendant would probably proceed diligently with the prosecution of his action to foreclose the mortgage held by him. The facts are fully stated in the opinion on that appeal. The purpose of requiring the defendant Burns to give a bond and mortgage for $4,000 and a mortgage for $3,500 was simply to put plaintiff in a position to protect his interest on the foreclosure sale, or failing in that, to have an indisputable claim to any surplus that might result from the sale. To effect this object the acceptance of the mortgages after entry of the decree of foreclosure, but before sale, would have been effective for it is only the sale and delivery of the referee’s deed which divests a mortgagor of his title. It was not essential to vesting title to the property in Burns that the deed to him should have been recorded. It was sufficient that the deed had been delivered to and accepted by him. Burns, therefore, at the time he made the tender to plaintiff was “ able” to carry out the provisions of the order of this court within the meaning of that word as used by the court in its order modifying the judgment heretofore appealed from. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.