
    Lizzie Goebbles, Plaintiff, v. James F. Morrisey, et al., Defendants.
    (Supreme Court, Westchester Special Term,
    March, 1907.)
    Partition — Sale and proceedings thereafter — Disposition of proceeds — Deduction of incumbrances.
    Where, by the interlocutory judgment in an action of partition, it is decreed that a mortgage upon the premises, more than twenty years past due at the commencement of the action, was valid and that there was due thereon a certain amount beside certain taxes paid by the mortgagee, who was made a party defendant in the partition action, the final judgment should provide that the necessary expenses of the partition sale and the taxes should first be paid and that the balance be paid to the defendant mortgagee on account of his mortgage.
    Motion to confirm a referee’s report in partition and for final judgment.
    Fred L. Merritt, for plaintiff.
    R. McKinley Power, for defendant Morrisey.
    Charles H. Banks, for other defendants.
   Tompkins, J.

This is an application for confirmation of the referee’s report of sale in partition and for final judgment.

The complaint alleged that the defendant James F. Morrisey was the owner and holder of a mortgage upon the premises described in the complaint for the sum of one hundred and fifty dollars, made on the 19th day of May, 1875, and further alleged that more than twenty years had elapsed since said mortgage became due, and that no action had been brought to foreclose the same, and that the said mortgage was not a lien upon the said premises.

The defendant Morrisey, by answer, admitted that he was the owner and holder of the mortgage, and alleged that the sum of sixty-five dollars had been paid on the 18th day of March, 1887, on account of the interest, and asked that the mortgage be declared a valid lien to the amount of one hundred and fifty dollars principal, with interest thereon at the rate of six per cent, per annum from the 19th day of May, 1879, less the sixty-five dollars; and for the further sum of ninety dollars and ninety-four cents, paid by the said James F. Morrisey, and for taxes on said premises to protect the said mortgage.

On the trial of the issue as to the validity of the mortgage, the defendant James F. Morrisey succeeded in establishing its validity; and the referee found that there was due on the said mortgage the sum of one hundred and fifty dollars, with interest from the 19th day of May, 1879, less the sum of sixty-five dollars, paid by him on account thereof, and that there was also due on said mortgage the sum of forty-one dollars and ninety-four cents, paid for taxes, with interest thereon; and the interlocutory judgment entered upon the said referee’s report decreed that the said mortgage was valid and that the amounts above stated were due thereon.

The premises sold for four hundred dollars, which was less than the amount due the defendant James F. Morrisey on the said mortgage for principal, interest and taxes paid by him and additional taxes which were liens upon the property at thé time of the sale.

On this motion the question is whether the mortgagee is entitled to payment of the- amount due on his mortgage before the payment of the costs and disbursements of the action.

■ The plaintiff chose to make the mortgagee a party defendant and alleged the invalidity of the mortgage, thus making it necessary for the mortgagee to defend and assert the validity of his claim. The mortgagee having succeeded at the trial and his mortgage having been declared to be a first lien upon the property, there is no reason in law or equity why he .should suffer a loss by having the costs of the unsuccessful plaintiff and the other defendants, whose interests were identical with the defendant Morrisey’s interests, paid out of the proceeds of the sale.

In the case of Beller v. Antisdel, 84 Hun, 252, it was held, in an action of partition, where a mortgagee is brought in as a party defendant and it is proposed to pay such mortgage from the proceeds of the sale of the property upon which the mortgage is a lien, the costs of the partition action should not he deducted from the proceeds of the sale before applying the same in extinguishment of the mortgage, unless the mortgagee has unnecessarily increased the costs and expenses of the litigation.

In the Beller case, the plaintiff did not attack the validity of the mortgage, while, in this case, the mortgage was attacked and the plaintiff brought the action for a partition or sale of the premises upon the assumption that the mortgage was invalid. And, inasmuch as the plaintiff failed in that contention, the claim of the mortgagee that the amount due him should be first paid out of the proceeds before the deduction of any costs is stronger and more meritorious than was the claim of the mortgagee in the Beller case; and it would be inequitable to compel the mortgagee to bear any part of the costs of this'action, especially the costs and disbursements incurred by the plaintiff and the defendant Bobert Morrisey, in their effort to defeat the mortgagee’s claim.

The final judgment should provide that the necessary expenses of the sale and the taxes which were a lien upon the property at the time of the sale be first paid, and that the balance in the hands of the referee be paid to the defendant James F. Morrisey on account of the amount due him on said mortgage.

Ordered accordingly.  