Chase National Bank v. Raleigh Estates, Inc.

266 A.D. 864 | N.Y. App. Div. | 1943

Hagarty, Carswell and Lewis, JJ., concur; Adel, J., dissents and votes to affirm, with the following memorandum: The parties treat the matter as one to test the sufficiency of the complaint. I think that the complaint does not state facts sufficient to constitute a cause of action and that the matter is not a proper subject for a declaratory judgment. The plaintiffs hold a third mortgage upon the real property owned by one of the defendants, and the other defendant holds a second mortgage upon the same premises. The plaintiffs’ mortgage is not in default nor has the security been impaired. The present value of the security and the present equities between the owner of the real estate and the holder of the second mortgage are no concern of the third mortgagee at this time. Hence an action now by the third mortgagee to secure a declaratory judgment fixing and establishing the amount of the principal at present unpaid upon the second mortgage held by the defendant Louray Realty Corporation covering the property owned by the other defendant does not lie. Johnston, J., not voting.