
    John A. Stewart et al., as Trustees of the Liverpool and London and Globe Insurance Co., in New York, Plaintiffs, v. Frank L. Smith et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1899.)
    Mortgage — Owner of equity may demand an assignment of a mortgage, which he did not give, in order to stop foreclosure.
    The owner of the equity of redemption, in premises subject, when purchased by him, to a mortgage now in process of foreclosure, has a sufficient interest to entitle him to demand an assignment of the mortgage, upon paying it in order to stop the foreclosure, as distinguished from being compelled to pay it and take a satisfaction of it — a course which must increase his investment in the premises and subject that investment to dower.
    This action was brought to foreclose the mortgage, which is the subject of this motion.
    The nature of the motion and the material facts are stated in the opinion.
    Frayer, Smith, White & Seaman (Eugene Frayer, of counsel), for motion.
    Philbin & Beekman (Eugene A. Philbin, of counsel), opposed.
   (Iiegerich, J.

The defendant John J. H. Poillon, the owner of the equity of redemption in property purchased by him subject to the plaintiffs’ mortgage, seeks to compel an assignment of such mortgage together with the bond accompanying the same, to himself or to his nominee, without covenants and “ without recourse ” upon payment of the amount due thereon, and the amount of the revenue tax required on such assignment.

It appears from the moving affidavits that domestic difficulties and differences have arisen between the defendant-owner and his wife, and that the latter has refused to join in the execution of a deed of, or mortgage upon, the premises in question.

The reasons advanced by the plaintiffs for their refusal to deliver the assignment are, that it is against their rules and that the attorney for the wife of the defendant-owner had requested them not to give any assignment of such bond and mortgage. These reasons, to my mind, are not sufficient, and it is clear upon the papers submitted that if the defendant-owner should be required to accept merely a satisfaction piece, upon his payment of the mortgage debt and interest to avoid the foreclosure, then he would be compelled, so far, to make an additional investment in real estate and subject the same to a right of dower in his wife against his own wishes.

Were this defendant a junior mortgagee, there is no question that the assignment could be demanded by him (Twombly v. Cassidy, 82 N. Y. 155), and so far as the plaintiffs are concerned, the identity of the assignee is immaterial, in the absence of conflicting equities.

I think that the defendant-owner stands in such relation to the property as to be entitled to the relief sought, under the circumstances, upon general principles of equity, and to grant his application involves no hardship upon his wife who would lose rather than gain by the foreclosure, and who could not be heard to demand that a further investment in real estate should be forced upon her husband to protect his present investment and her own interests.

The earlier rule that one seeking an assignment of a mortgage from the mortgagee, upon tender, must occupy the relation of a surety to the debt, has no longer application and it is broadly stated “ that one who is interested in the property, and can present, sufficient legal or equitable grounds for such relief, is entitled to an assignment * * * as distinguished from being obliged to ■pay the mortgage debt and receive a satisfaction piece.” Hover v. Hover, 21 App. Div. 568; affd., 155 N. Y. 666.

In the absence of any direct authority in favor of the plaintiffs or of reasons which might disclose justice in their opposition to this motion, I am inclined to hold that there is merit in the moving party’s application.

Motion granted, without costs.  