Magilton v. Holbert , 59 N.Y. Sup. Ct. 444 ( 1889 )

By the Court .

When a second mortagee pays the interest of the first mortgage, in order to protect Ins own security, we suppose he may “tack” the amount thus paid to his own mortgage, whenever he forecloses, if there be no intervening equity. So, probably, he may do as to any costs of tbe foreclosure of tbe first mortgage necessarily paid by him. But be is not entitled to bave an assignment of any share of the first mortgage. Because if be were thus to become an owner in common with tbe first mortgagee, tbe security of tbe first mortgagee would be diminished. Tbe rights of the second mortgagee will be sufficiently protected whenever he shall be compelled to foreclose bis own mortgage, by proof that be has necessarily paid these moneys to protect his security.

Tbe part of tbe order appealed from should be reversed, with ten dollars costs and printing disbursements.

Landon and Ingalls, JJ., concurred.

Tbe part of tbe order appealed from reversed, with ten dollars costs and printing disbursements.