148 Misc. 55 | New York County Courts | 1933
Plaintiff seeks to foreclose a mortgage made upon certain real property by the defendant Elizabeth D. Nelson on May 29,1929, and recorded on June 1,1929, in Nassau county clerk’s
That such an agreement may be enforced in equity has recently been determined. (Kennilwood Owners Assn., Inc., v. Wall, 148 Misc. — , Mr. Justice Steinbrink.) The agreement there involved was in all respects substantially similar to that in the instant case. Pointing out that under certain circumstances parties may agree to the creation of a lien to enforce which equity affords a remedy (Smith v. Smith, 125 N. Y. 224, 230; James v. Alderton Dock Yards, 256 id. 298, 303), Mr. Justice Steinbrink, referring to the agreement before him, said: “ By the terms of the covenant above
I am in accord with the decision of the learned justice, and find it completely applicable to the situation here presented. The corporate defendant asserts that, pursuant to the agreement, the mortgaged premises, consisting of 243 lots, became subject to a lien of $10 per lot, or a total of $2,430, on January 1,1932, and to a lien in a similar amount on January 1, 1933.
Having determined that such a lien exists, there remains only the question whether it is subordinate to the lien of plaintiff’s mortgage.
The agreement was made and recorded long prior to the making and recording of the mortgage. The nature of the agreement was such that it affected the title to real property within the meaning of the recording acts. (Real Prop. Law, § 291.) The mortgagee, therefore, took the mortgage with constructive notice of the prior recorded agreement imposing a lien upon the very premises covered by the mortgage.
It must necessarily follow that the mortgage is subject and subordinate to such lien.
As I understand it, the only question presented is whether the corporate defendant has a lien under the agreement, and whether such lien is superior or subordinate to the lien of the mortgage. In my opinion, the defendant Grenwolde Association, Inc., has such a lien, and the lien of the mortgage is subordinate to it. Such being the case, if there be any dispute as to the amount of the lien of the defendant Grenwolde Association, Inc., in order that foreclosure of the mortgage may not be unnecessarily delayed, the order of reference to compute may likewise refer to the referee determination of the amount of that lien.
Submit order accordingly for settlement on notice.