
    Felix A. Muldoon and Others, as Trustees under an Indenture of Trust for the Benefit of Certificate Holders under Guarantee No. 203,196 of Bond and Mortgage Guarantee Company, Covering Premises 351-359 Grand Concourse and 350-360 Walton Avenue, Borough and County of Bronx, City of New York, Appellants, v. Mid-Bronx Holding Corporation, Respondent.
   Appeal by the plaintiffs from an order of the Supreme Court, entered in the Bronx county clerk’s office on January 16, 1941, denying their motion and granting defendant’s motion for judgment on the pleadings, and also from the judgment entered thereon in said clerk’s office on February 1, 1941, dismissing the complaint on the merits and directing declaratory judgment in favor of defendant.

Order and judgment affirmed, with costs. No opinion.

Present — Martin, P. J., O’Malley, Glennon, Untermyer and Cohn, JJ.; Untermyer, J., dissents in opinion in which Glennon, J., concurs. [175 Misc. 700.]

Untermyer, J.

(dissenting). When a portion of the mortgaged premises was acquired in condemnation by the city of New York, there was no reduction of the mortgage debt until the award was paid by the city to the mortgagee. Until then the mortgage contract remained unimpaired and continued to bind the mortgagor to pay and the mortgagee to accept interest at the contractual rate. If the award had exceeded the principal of the mortgage or if the interest on the award had exceeded the mortgage rate, the owner and not the mortgagee would be entitled to the benefit of-the excess.

Accordingly I do not perceive why the mortgagee should be deprived of the benefit of his contract until the mortgage is discharged pro tanto by a payment on account.

The order and judgment should be reversed with costs and the motion for judgment in favor of the plaintiffs should be granted.

Glennon, J., concurs.  