
    Matter of the Application of The City of New York, Relative to Acquiring Title to East One Hundred and Forty-ninth Street from the Southern Boulevard to the United States Bulkhead Line of the Harlem River.
    (Supreme Court, New York Special Term,
    January, 1900.)
    Eminent domain — Awards, in the city of New York, as between mortgagor and second mortgagee.
    After title to premises, subject to two bonds and mortgages, had vested by condemnation in the city of New York, the second mortgagee foreclosed, bought in and a deficiency resulted. He subsequently purchased and paid off the first mortgage.
    Held, that he Was entitled to an award for said deficiency.
    That his payment of the first mortgage did not entitle him to be subrogated to the rights of the first mortgagee for a possible deficieney on that mortgage, there being no method of estimating such a deficiency.
    That an award to the person, who was the owner of the equity of redemption at the time when the city took title, was proper because title thereto did not pass to the second mortgagee upon his purchase at the foreclosure and sale.
    Motion to confirm the first partial and separate report of the commissioners of estimate and apportionment in the above-entitled matter.
    John Whalen, Corporation Counsel, for motion.
    James A. Dunn, for Maria Padula and others.
    Gumbleton & Hottenroth, for Charles P. Faber, opposed.
   Giegerich, J.

As to damage Mo. 157 I find myself compelled, to the view that the award is to be upheld as against the objections interposed by the present owner, Faber. This party, a second mortgagee, foreclosed and purchased after title to the portion of the premises condemned had vested in the city of New York. (See Laws of 1895, chap. 449.) His bid upon the sale was made for the property subject to the first mortgage of $10,000, and, there being a deficiency upon this sale, he was entitled to- and has been awarded the amount of that deficiency in these proceedings. His interest in the property, as second mortgagee, was thus properly protected (Hill v. Wine, 35 App. Div. 520, 523), but it is now claimed that he has a further interest by reason of the fact that he subsequently paid off the. first mortgage. The argument is that, but for this payment, the first mortgagee would have held a valid claim upon this award for the amount of a possible deficiency, and that, by the payment, this objector became subrogated to the- prior lienor’s rights. The difficulty with this position- is that there is no means whereby the amount of any possible deficiency upou the first mortgage might be determined, and since the objector chose to satisfy the lien, instead of keeping it alive by assignment, the legal aspect of the situation is such as to preclude his asserting any lien. In the absence of proof that the objector could possibly establish a right to a deficiency, there was no basis for the award being made to unknown owners for the protection of such right; and, for the purposes of this proceeding, it was to be assumed that the party, when satisfying the lien, did so-in recognition of the fact that the value of the land justified the expenditure. If he was mistaken in his investment, there would certainly seem to be no power in the court to aid him in the present proceeding. The award to the owner of the equity of redemption of the land in suit when the city took possession thereof, one Maria Padula, was proper because title thereto did not pass to-the purchaser under the said judgment of foreclosure and sale. (Hill v. Wine, supra:) In the case last cited, Mr. Justice In-graham, speaking for the court, at page 523, said: “ The interest of both the mortgagor and the mortgagee -in the mortgaged premises were acquired by the city for public use, and in place of that interest in the land, the plaintiff had the right to require the City of Mew York to pay the value of her interest diredtly to her. The plaintiff’s right of action against the obligor upon the bond wás not affected, and if the award by the city was not sufficient to pay the mortgage, the mortgagees would have a cause of action against the plaintiff upon the bond, but the lien upon the mortgaged premises having vested in the city, there was no lien or mortgage that the plaintiff could foreclose.” An order may, therefore, be presented confirming the award in this instance. As to the objection to' award No. 239, I understand that the report has been, so far, confirmed. If the confirmation is claimed to have been due to a misconception of counsel’s position, that fact should be made apparent upon the record.

Ordered accordingly.  