96 Misc. 2d 230 | N.Y. City Civ. Ct. | 1978
OPINION OF THE COURT
Defendants executed and delivered to plaintiffs a bond and mortgage on premises located at 130 Monroe Street, Brooklyn, New York. Defendants defaulted in paying the mortgage debt, and plaintiffs brought the instant action on the bond.
On May 3, 1976, a default judgment was obtained by plaintiffs in the amount of $8,595.56, and execution was issued to the Sheriff. When the Sheriff attempted to sell the premises subject to the mortgage, the sale was stayed by order of this court pursuant to CPLR 5236 (subd [b]).
Defendants’ contention, that plaintiffs’ right to foreclose the mortgage is extinguished as a result of their election to proceed on the bond, is not correct. (Real Property Actions and Proceedings Law, § 1301, subd 1.)
The purpose of subdivision 1 of section 1301 of the Real Property Actions and Proceedings Law is to avoid multiple actions to recover the same debt and to confine the proceedings to collect the mortgage debt to one court and one action. (Brandenberg v Tirino, 66 Misc 2d 193.) Section 1301 of the Real Property Actions and Proceedings Law bars a subsequent foreclosure action where a prior final judgment has been obtained by a plaintiff in an action to recover all or part of the mortgage debt, only until after execution "has been returned wholly or partly unsatisfied.” This statute is an embodiment of the equitable principle, that once a remedy at law has been resorted to, it must be exercised in its entirety before a remedy in equity may be sought. (White Factors v Friedman, 32 Misc 2d 978.)
The prior order of this court specifically limits the stay so that sale of the property is stayed "in execution of the judgment herein”. Thus, if plaintiffs meet the requirements of section 1301 of the Real Property Actions and Proceedings Law, they may be able to commence a foreclosure proceeding against the property. A sale in such a later proceeding is not stayed by the prior order of this court.
Motion is denied.