Suffolk County Federal Sav. & Loan Ass'n v. Geiger

• Decision Date: 11 July 1968
• Citation: 291 N.Y.S.2d 982,57 Misc.2d 184
• Parties: SUFFOLK COUNTY FEDERAL SAVINGS AND LOAN ASSOCIATION v. Herbert GEIGER, etc., et al.
• Court: New York Supreme Court

Page 982

291 N.Y.S.2d 982

57 Misc.2d 184

SUFFOLK COUNTY FEDERAL SAVINGS AND LOAN ASSOCIATION v. Herbert GEIGER, etc., et al.

Supreme Court, Special Term, Suffolk County, Part I.

July 11, 1968.

Reilly, Like & Schneider, Babylon, for plaintiff.

Leslie Tenzer, Babylon, for defendant, Elar Lumber.

MEMORANDUM

JACK STANISLAW, Justice.

Plaintiff, in a mortgage foreclosure action, moves: (1) to dismiss the affirmative defense asserted by defendant Elar Lumber Company Inc., a judgment creditor of the mortgagor; and (2) for summary judgment. The premises which is the subject of this action is owned by defendants Geiger and is located in Suffolk County.

The question presented is the priority of the liens of a judgment creditor and a foreclosing mortgagee, where the mortgage was made after the judgment was obtained in a district court, but before it was docketed in the office of the Clerk of the county where the property described in the mortgage is located.

The chronological sequence of events which gives rise to this question is as follows: (1) In 1962, defendants Geiger, gave a mortgage, in the sum of $13,200, to the plaintiff bank. That mortgage was duly recorded and its validity and priority is not here in dispute. (2) On November 1, 1965, defendant Elar Lumber Company, Inc. obtained a judgment in the Suffolk County District Court, Fifth District, against defendant Herbert Geiger, in the sum of $2,406. (3) On November 18, 1965 defendants Geiger gave plaintiff an additional mortgage on their premises, in the sum of $2,220.89. On the same day, that mortgage was consolidated with the balance due and owing on the prior mortgage, for a total of $14,600. (4) On November 22, 1965, prior to the recording of either the $2,220.89 mortgage or the consolidated mortgage, defendant Elar Lumber Company, Inc. docketed a transcript of the district court judgment in the office of the Clerk of Suffolk County. (5) On December 1, 1965, plaintiff recorded the consolidated mortgage, which is the subject of this action.

The thrust of the defense asserted by Elar Lumber Company, Inc. is that its judgment is superior to the consolidated mortgage, at least to the extent of $2,220.89 (representing the amount of the mortgage given by the Geigers to plaintiff on November 18, 1965), on the ground that said mortgage was made eighteen days After said judgment was obtained and, although not docketed in the County Clerk's office until four days after execution thereof, was docketed eight days Prior to the recording of the consolidated mortgage.

Defendant's judgment, however, did not become a lien on the subject premises until November 22, 1965, when it was docketed in the County Clerk's office (CPLR 5203). 'A judgment has only such lien as is given by statute, for at common law judgments were not liens upon real estate. No distinction existed, so far as their collection was concerned, between real and personal property. In either case it was necessary to 'sue out an execution' and make a levy, and a lien did not attach until the levy was made. Atlas Refining Co. v. Smith, 52 App.Div. 109--114, 64 N.Y.Supp. 1044' (Hulbert v. Hulbert, 86 Misc. 662, 666, 149 N.Y.S. 568, 570). With respect to personal property, the law remains unchanged. With respect to real property, pursuant to CPLR 5203, a judgment becomes a lien 'from the time of the docketing of the judgment with the clerk of the county in which the property is located * * *.' But 'except as provided by statute, a mere judgment is never a lien against the real estate of the judgment debtor' (H.R. & C. Co. v. Smith, 242 N.Y. 267, 269, 151 N.E. 448, 449, 45 A.L.R. 554) (Italics supplied.)

As for plaintiff's failure to file the consolidated mortgage until after the judgment was docketed, it is well settled that the protection of the recording act can be relied upon only by subsequent purchasers and mortgagees, Not by judgment creditors (Savings and Loan Association of Kingston v. Berberich, 24 A.D.2d 187, 264 N.Y.S.2d 989; Blum v. Krampner, Sup., 28 N.Y.S.2d 62, affirmed 261 App.Div. 989, 27 N.Y.S.2d 1000; Fox v. Sizeland, 170 Misc. 390, 9 N.Y.S.2d 350; Real Property Law §§ 290, 291). Thus, while the judgment did not become a lien on the subject premises until November 22, 1965, (the date it was docketed in the County Clerk's office), the mortgage in question became a lien upon the premises therein...