Citizens' Savings Bank v. Foster , 22 Abb. N. Cas. 425 ( 1889 )

Patterson, J.

On considering all the circumstances disclosed in these papers, it seems to me the court should interfere for the protection of the junior mortgagees. The relief sought may be granted on motion. Welling v. Ryerson, 94 N. Y. 103. All that the first mortgagee ought to ask is the payment in full of its mortgage, interest and costs, and, those amounts being paid, the third mortgagee is entitled to an assignment of the mortgage, and decree to protect his rights. The only answer made to the application is that an actual tender has not been made by the third mortgagee, but that is not a controlling circumstance to defeat this application, as one was virtually made by Bauer in the interest of the moving party. There is no substantial reason given why the relief here sought should not be allowed, and the motion is granted on condition that payment of the first mortgage in full, with all accumulations of interest, costs, and allowances, and $10 costs of this motion, be made within three days after the entry of the order hereon. Ordered accordingly.