
    Samuel T. Guilford, Resp't, v. Clara M. Jacobie, Impl'd, App'lt
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Foreclosure—Parties—Prior mortgagee.
    It is proper, in an action of foreclosure, to make a prior mortgagee a party defendant, so that the amount of the prior mortgage may be determined and paid out of the proceeds of sale, and its lien discharged.
    2. Same—Subsequent action or prior mortgage.
    The pendency of an action of foreclosure is not a legal defense to a subsequent action to foreclose a prior mortgage, but such subsequent action does not prevent the first one from proceeding and bringing the mortgaged premises to a sale.
    3. Same—Costs op subsequent action.
    Whether in such case the prior mortgagor should be allowed the costs and disbursements of the subsequent action rests in the discretion of the court.
    Appeal from order denying defendant’s motion to modify a judgment of foreclosure.
    Plaintiff held a second mortgage on the premises described in the judgment, and defendant Jacobie held the first mortgage. Subsequent to the commencement of this action defendant Jacobie commenced an action to foreclose her mortgage. The judgment herein provides that after payment of costs the referee shall pay defendant Jacobie’s mortgage, and out of the balance pay the mortgage of plaintiff.
    Thereafter defendant Jacobie moved for a modification of the judgment:
    
      First. By providing therein that said sale should be had and made subject to the defendant, Clara M. Jacobie’s, mortgage.
    
      Second. That if the first proposition is denied, that the fees and expenses of sale, as provided in §§ 1626 and 1676 of the Code of Civil Procedure, shall not be paid until the said defendant, Jacobie, is paid the full amount due upon her mortgage.
    
      Third. That in case the first proposition is denied, that the said Clara M. Jacobie be paid the sum of $1,203.83, with interest from the '7th of July, 1892, together with the costs and disbursements of the action hereinbefore stated, to the time of such payment, to be taxed by the clerk of Warren county; which was denied.
    
      King & Ashley (H. Prior King, of counsel), for app'lt; J. H. Bain, for resp't.
   Putnam, J.

The order should be affirmed. The defendant Jacobie’s mortgage is past due; there is no dispute as to the amount secured by it, and the judgment of which appellant complains provides for its payment out of the first proceeds of the sale, after deducting the referee’s fees and expenses thereon, before any part of such proceeds are received by plaintiff on account of his mortgage debt or costs.

It was proper for plaintiff to make the prior mortgagee a party defendant, that the amount of her mortgage might be determined and paid out of the proceeds of the sale, and its lien discharged. Met. Trust Co. v. Tonawanda, etc., R. R. Co., 43 Hun, 524; 7 St. Rep., 90; Holcomb v. Holcomb, 2 Barb., 20; Vanderkemp v. Shelton, 11 Paige, 29; Western Ins. Co. v. Eagle Fire Ins. Co., 1 id., 284; 3 Rumsey’s Practice, 111; Emigrant Industrial Sav. Bank v. Goldman, 75 N. Y., 132.

It has been held that the pendency of plaintiff’s action to foreclose his mortgage was not a legal defense to a subsequent action by defendant to foreclose her prior mortgage. Adams v. McPartlin, 11 Abb. N. C., 369.

But such subsequent action does not prevent plaintiff from proceeding in this case, and bringing the mortgaged premises to a sale under the judgment properly entered herein, and carrying out the provisions of said judgment. The question whether defendant Jacobie should be allowed, in addition to the amount on her mortgage for principal and interest, the costs and disbursements incurred in her (unnecessary) action to foreclose her mortgage, was one addressed to the discretion of the court below.

Order affirmed, with costs and printing disbursements.

Mayham, P. J., concurs.  