Siewert v. Hamel ( 1884 )

Brady, J.:

It appears that after this action was commenced the Union Dime .'Savings Bank proceeded to foreclose a mortgage which they held against the premises described in the plaintiff’s mortgage, under which a sale took place prior to the entry of the plaintiff’s judgment herein, and at which sale the plaintiff herein became the purchaser. It also appears that under the sale mentioned there was .a surplus, which the plaintiff herein proceeded to obtain and acquire by proper measures, and applied the same to the account of the • ■defendant. The judgment entered herein directed the referee to •specify the amount of the deficiency in his report of sale and that .the defendant pay the same to the plaintiff. And by the findings herein it was declared by the justice who tried the cause that the plaintiff was entitled to judgment against the defendant for the deficiency, if any. The premises having been sold under a prior mortgage, and there being therefore nothing to sell under the judgment, application was made for an order directing the entry of ,a judgment herein for the amount due after the payment of the moneys obtained out of the surplus already mentioned, and which was the deficiency, that sum being still due after the payment of the surplus as already mentioned.

Justice Potter, to whom the matter was presented, disposed of it in an opinion which, we think, correctly expresses the rules of. law by which the motion should be governed. Ke distinguishes this case from the case of Loeb v. Willis (22 Hun, 508), and properly says in regard to the case cited that there the plaintiff, who was the second mortgagee and moved for judgment for a deficiency, had no judgment whatever, whilst in this case there was a judgment of sale and a judgment for a deficiency, and it was further distinguishable from this case from the fact that, there was no surplus and here there was a surplus; and further, that the amount of the plaintiff’s claim herein was reduced by the application of the surplus.

It must be admitted that the line is very close between this case and the • one cited, but nevertheless the existence of the judgment in the plaintiff’s favor and the surplus, and the application of that surplus, would seem to make the deficiency apparent as the result of a sale of the premises, although that sale did not take place under the plaintiff’s judgment. For this reason, although it must be conceded that it is not free from doubt, it is thought, inasmuch as no sale of the premises described in the mortgage given took place under the plaintiff’s judgment, a sale of them, having been already made by legal process, and as no good could result from such an incident and as it would therefore be a work of supererogation, the plaintiff herein should not be subjected to the necessity of abandoning this action, in which the deficiency, if any existed, was decreed, and be compelled to resort to an action on the bond and thus obtain a judgment m personam. A mistake was made, howevei’, in the allowance of interest, which could be only at the rate of seven per cent up to the time of the passage of the act reducing the rate of interest to six per cent, the judgment having been entered before tbat statute took effect. Sucb is the law. (Taylor v. Wing 84 N. Y., 471.)

The order must be modified, therefore, by deducting the excessive interest, and affirmed in all other respects, without costs to either party.

Davis, P. J., and Daniels, J., concurred.

Order modified as directed in opinion and affirmed as modified, without costs.