119 N.Y.S. 288 | N.Y. App. Div. | 1909
This is an appeal by plaintiffs from an order denying their motion to amend the judgment of foreclosure and sale herein so as to except from the description of the premises to be sold a certain easement in the mortgaged property acquired by the city of Yew York subsequent to the making of the mortgage, and also providing for the application to the payment of certain accrued taxes and assessments of the amount of the award made for the easement.
As to the first branch of the motion the facts are that plaintiffs hold a mortgage, executed by defendants’ grantor, on Hay 4, 1905, covering certain premises in the city of Yew York. On March 18, 1908, this action was begun to foreclose the mortgage, and on Hay 29, 1908, a judgment of foreclosure and sale was entered, being the judgment now sought to be amended. In the meantime the city of Yew York had instituted condemnation proceedings for the purpose of acquiring an easement in the mortgaged property for the construction and maintenance of a sewer. The commissioners of estimate awarded $9,206.49 to the owners of the land as the value of the easement taken, and their report was confirmed on Hay 29, 1908, on which date the city acquired the easement. By agreement with the owners of the land the attorney who represented them in the condemnation proceeding became entitled, as against said owners, to twenty-five per cent of the award as his fee. The plaintiffs, as part of their motion, desire to so amend the decree of foreclosure as to add to the description of the property to be sold an exception of the easement in the mortgaged land which has been acquired by the city. To this extent the motion should have been granted. The city of Yew York having, by right of eminent domain, acquired a part of the mortgaged premises, for that is what a permanent easement amounts to, that part is no longer covered by the mortgage
The order appealed from must, therefore, be reversed in so far as it denied the motion to amend the judgment, and the motion to that extent granted. In so far as the order denied the motion to apply the award to the payment of accrued taxes and assessments it is affirmed, with leave to plaintiffs to renew the motion, or make such motion in respect thereto as they may be advised, without costs to either party in this court.
Ingbaham, Laitghlin, Clabke and Houghton, JT., concurred.
Order reversed in part, and motion granted to extent stated in opinion, and in part affirmed, with leave to plaintiffs to renew. Settle order on notice.