152 N.Y. 610 | NY | 1897
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *613 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *615 The mortgage in suit was given to Julia Waterbury to secure the sum of one hundred thousand dollars loaned by her to the Tucker Carter Cordage Company to pay a prior mortgage upon the mortgaged premises for that amount. After her death John S. Ellis, who was the executor of her estate, assigned the mortgage to the plaintiffs as executors of the estate of Lawrence Waterbury, deceased. The consideration for the assignment was the amount secured by the mortgage, which was paid by canceling a debt of eighty-five thousand dollars which the estate of Julia Waterbury was owing to the estate of Lawrence Waterbury, and the payment to the executor of her estate of the remainder in cash. That the estate of Lawrence Waterbury acquired a valid title to this mortgage we have no doubt. Nor was there evidence sufficient to establish an estoppel against the plaintiffs, as *616 representatives of the estate of Lawrence Waterbury. Therefore the court properly held that the plaintiffs were entitled to a judgment of foreclosure and sale of the mortgaged premises, and the judgment should be affirmed.
The next point we are asked to consider relates to the validity of the order overruling the defendants' exceptions to the report of the referee upon the question, whether the mortgaged premises should be sold together, or, in parcels. The referee, to whom that question was referred, reported that the premises could not be sold in parcels without injury to the interests of the parties, that, in his opinion, the mortgaged premises, fixtures, machinery and appurtenances should be sold together as one parcel, and stated fully the reasons for his opinion. An examination of his report, and of the facts upon which it is based, renders it obvious that the property could not be disposed of in parcels without serious injury to the parties. We are of the opinion that the court properly overruled the defendants' exceptions and confirmed the report of the referee as to the manner in which the premises should be sold.
This leaves for examination the question of the propriety of the order granting the plaintiffs an additional allowance of two thousand dollars. If any authority for this order exists it must be found in section 3253 of the Code of Civil Procedure. That section, as it stood when this order was granted, provided: "In an action, brought to foreclose a mortgage upon real property; or for the partition of real property; or in a difficult and extraordinary case, where a defense has been interposed, in any action; the court may also, in its discretion, award to any party a further sum, as follows: 1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any other case,specified in this section, a sum not exceeding five per centum upon the sum recovered, or claimed, or the value of the subject-matter involved." The claim of the appellants is that the court had no authority to grant an extra allowance *617
for an amount exceeding two hundred dollars. They insist that, in an action to foreclose a mortgage, section 3253 plainly restricts the amount which the court may grant as an extra allowance, to the sum of two hundred dollars. It has several times been held that in an action for the foreclosure of a mortgage upon real property, the allowance which may be granted is limited to that amount, although the case may be difficult and extraordinary. (Hunt v. Chapman,
All concur.
Judgment accordingly *619