99 N.Y.S. 639 | N.Y. App. Div. | 1906
. This action wasbrought-to foreclose a- mortgage upon property in the city of Hew York, in which a judgment'of foreclosure and sale was entered'on Hovember 26, 1904, and-subsequently the property was sold and- conveyed by the referee. After the payment of the amount due on the mortgage there was a surplus of $5,238.34. .To
The referee reported that the respondent Henderson be paid the amount of the mortgage and that the balance of the surplus might be paid to respondent McDevitt. He also reported that the appellant Schieck was paid the amount of his mortgage of $2,000. This was based upon a receipt executed by Schieck to a referee in an action to foreclose his mortgage, in which Schieck was plaintiff and-Donohue, the owner of the equity óf redemption, was defendant. . This report was excepted to, but-was confirmed by the court.
Upon the proceedings before the referee, counsel for the appellant offered in evidence a mortgage made by Annie Donohue, the owner of the equity of redemption, to August Schieck, dated April 6, 1900, and recorded on the 18tli day of May, 1900, to secure the payment of $2,000 and the bond to secure which tiiat mortgage was given. It was then admitted that no interest had been paid on the bond and mortgage of Schieclc’s. There was then introduced in evidence a judgment roll in an action in the Supreme Court in which Scliieclc was plaintiff against Annie Donohue, the owner of the equity of redemption, filed June 23, 1901, directing a foreclosure of this mortgage, and it was stipulated that this judgment had not been paid. This judgment was to foreclose this mortgage for $2,000. Judgment was entered directing a foreclosure and sale by a referee. Upon this proof the appellant Scliieclc, rested.
The facts upon which the referee had found that the appellant’s mortgage had been paid are as follows : The appellant commenced an action against the owner of the equity of redemption to foreclose this $2,000 mortgage; he obtained a judgment in that action,"and
It follows that the order appealed from must be reversed, the exceptions to the report by the appellant sustained and the final order modified by directing that the appellant Schieck be first paid the amount of his mortgage and interest to the date of payment; that the respondent Henderson be then paid the amount due on her mortgage and interest, and the balance of the surplus money be paid to the respondent McDevitt, with ten dollars costs and disbursements of this appeal to the appellant, payable out of the fund. .
O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Order reversed, appellant’s exceptions. to report sustained, and final order modified as directed in opinion, with ten dollars costs and disbursements of this appeal payable out of the fund. Settle order on notice.