140 N.Y.S. 909 | N.Y. App. Div. | 1913
This action is brought for the foreclosure of a second mortgage, made February 16, 1910, by Frank A. Bandholtz to secure the payment of $1,500 and interest to one Elizabeth A. Bandholtz. This mortgage' was immediately assigned to the Mortgage Securities Company. Upon the trial of this action ' an assignment from said company to plaintiff was offered in evidence. This assignment, dated June 28,1910, had, not been recorded at the date of the trial., Subsequently to the making of said mortgage the premises covered thereby Were conveyed to defendant’s husband) and by him to her. Although the former conveyance was in express terms made subject to a first mortgage on said premises, no reference was made therein to the mortgage in suit, and defendant attempted to prove that she was ignorant of the existence of said mortgage when she purchased the property. The evidence was properly excluded. The mortgage had been duly recorded, and she was chargeable with notice thereof.
In July, 1911, another action was commenced to foreclose this mortgage. At that time an agreement was entered into by which, upon payment by defendant of all the costs which had accrued in that action and the sum of $150 in addition thereto
With regard to the other points raised by appellant, it is sufficient to say that plaintiff, as a junior incumbrancer, was entitled to pay the interest due upon the prior- mortgage for his protection, and, having done so, to be treated as the assignee of the claim. (Twombly v. Cassidy, 82 N. Y. 155; Patterson v. Birdsall, 64 id. 294.) While it would have been courteous for plaintiff to call defendant’s attention to the unpaid tax and request payment thereof before starting this action for foreclosure, he was under no legal obligation to do so. The mortgage did not in express terms require it, and the clause therein relating to notice! may be referred to a case where notice of application for the appointment of a receiver is required. Even though the ^mortgage provides that such a receiver may be appointed without notice, the ■ court is not bound thus to appoint, and in its discretion may. require notice to be given. (Jarmulowsky v. Rosenbloom, 125 App. Div. 542.)
We think that the judgment appealed from must be affirmed, but in the exercise of the discretion conferred upon us in an action of this nature, such affirmance should be without costs.
Jenks, P, J., Burr, Carr, Rich and Stapleton, jj., concurred.
Judgment of the County Court of Kings county, affirmed, without costs.