Quackenbush v. O'Hare

• Decision Date: 20 January 1892
• Citation: 29 N.E. 958,129 N.Y. 485
• Parties: QUACKENBUSH v. O'HARE et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 485

29 N.E. 958

QUACKENBUSH

v.O'HARE et al.

Court of Appeals of New York.

Jan. 20, 1892.

Appeal from supreme court, general term, first department.

Action by Rebecca M. E. Quackenbush against Maria O'Hare and others to foreclose a mortgage. Defendants Washburn and Barnes appeal from a judgment affirming an order granting the application of defendant Cannon to surplus moneys arising from the sales on foreclosure. Affirmed.

MORTGAGES-RIGHTS OF MORTGAGEE.

On an application by a second mortgagee for surplus moneys arising from a sale on foreclosure of the first mortgage, he will not be compelled to release his lien in favor of subsequent mortgagees, on proof merely that his debts is amply secured by other property on which his mortgage is a lien. 16 N. Y. Supp. 33, reversed.

Earley & Prendergast, for appellants.

Henry G. Atwater, Samucl Untermyer, and Moses Weinman, for respondent.

O'BRIEN, J.

The order appealed from disposed of surplus moneys amounting to the sum of $2,737.75 arising upon the forecloure of a mortgage made by the defendant to one Elizabeth Hillenbrand February 28, 1884, and recorded the following day. It was subsequently assigned to the plaintiff, and covers certain premises on Second avenue in the city of New York. The controversy in regard to the surplus was between the defendant Cannon on the one hand and the defendants Washburn and Barnes on the other. The referee reported that Cannon was entitled to have his claim paid out of the fund first, and this report was fonfirmed at the special term, and the order of that court affirmed at general term. Washburn and Barnes are the only parties who appeal to this court.

It appears from the findings that the defendant Cannon is the owner of a mortgage of $2,000, dated January 9, 1885, and recorded July 22, 1885, which covers the premises sold under the decree of foreclosure in the action, and it is beyond all dispute a lien next to that of the mortgage foreclosed by the judgment upon which the surplus arose. But this mortgage is a lien on three separate pieces of real estate: (1) The house on Second avenue, which was sold under the judgment in this case, and from which the surplus came: (2) certain premises on Seventy-Fourth street; (3) certain premises on West Third street. Washburn and Barnes hold a junior mortgage for over $3,000, dated January 28, 1887, and recorded February 11, 1887, covering the Second-Avenue property only. The Murray Hill Bank holds a mortgage of $2,500, dated November 11, 1886, which covers the Seventy-Fourth Street property only. One Steers holds a mortgage of about $11,000, dated February 2, 1887, covering the West Third Street property only. One Suydam is the owner of a mortgage of $2,000, dated July 9, 1885, which covers the three pieces of property, and the same has been assigned to Cannon as trusteefor the owner. Washburn and Barnes insist that they should have the surplus to pay their mortgage, which is a lien next to that of Cannon, and that he should be driven to a sale of the other two pieces of property covered by his mortgage, which they claim is...