
    Simon Pretzfeld et al., Plaintiffs, v. Edward L. Lawrence, Mary J. Stockton et al., Defendants.
    (Supreme Court, New York Special Term,
    March, 1901.)
    Foreclosure — For interest only, irregular — Bights of purchaser upon a second foreclosure of the same mortgage for principal — Leave to sue — Code C. P., §§ 1628, 1629.
    A foreclosure of a mortgage for interest only is merely irregular and the judgment is not void.
    Only the owner of the equity of redemption can take advantage of the irregularity and must do so by direct proceedings in the action.
    
      The foreclosure of a mortgage for interest only does not bar a subsequent foreclosure of it for principal and interest.
    Where a mortgage has been foreclosed for interest only, a person who takes a deed, from the grantee of the referee, expressly made subject to the mortgage cannot resist a subsequent foreclosure of it for principal and interest.
    A complaint to foreclose a mortgage, following" a prior foreclosure of the same mortgage for interest only, is not one to recover the mortgage “debt” within Code C. P., §§ 1628 and 1629 and there-, fore leave to sue need not be obtained.
    
      Semble, that if leave were necessary it would be granted mine pro - tunc, as said sections are not jurisdictional and relate only to practice.
    Action to foreclose a mortgage for $43,000, executed on May 2, 1895, by Edward L. Lawrence to the plaintiffs as executors and trustees of William Pretzfeld. On the same day Lawrence conveyed the premises to Mary J. Stockton, subject to the mortgage, alid she, in '¡November, 1895, mortgaged the premises to one Theodore J. Miller. In 1896, the executors of William Pretzfeld foreclosed for interest only, the premises were conveyed by the referee to William H. Siegman, subject to the mortgage, and the Miller mortgage was paid out of the surplus. ■ William H. Siegman subsequently conveyed the premises to Ralph Weil, subject to the. mortgage, who contracted to sell them to Augustus Van Horn Stuyvesant, and in the action-by the latter against the former for specific performance, in which the plaintiff therein alleged that the title was hopelessly bad, the title was held good and the complaint was dismissed. 26 Mise. Rep. 445. This judgment was reversed in 41 App. Div. 551, and the title, held unmarketable, among other reasons, because Mary J. Stockton had been sued in the foreclosure action under the name of Emma J. Stockton. In the present action she claimed that the same was not maintainable and that she had a right to redeem, while Ralph Weil, made defendant, claimed that, in view of the previous decision, he was a mortgagee in possession and was entitled to be subrogated to the rights of the holder of the Miller mortgage.
    Wolf, Kohn & Ulhñan, for plaintiffs. •
    Paul R. Towne, for defendant Stockton (owner of the equity of redemption). -
    
      Edward W. S. Johnston, for defendant Weil.
    Lucius H. Beers, for defendant Stuyvesant.
   Leventritt, J.

I hold with Mr. Justice Werner that the foreclosure for interest only while extraordinary practice was a mere irregularity. Stuyvesant v. Weil, 26 Mise. Rep. 445. No one could take advantage of the irregularity except the defendant Stockton by proceedings directed against the judgment in the foreclosure suit. She has taken no steps, nor does she in her present pleading make any offer to do equity. The present foreclosure for principal and interest is regular, the defendant Stockton was properly made a party, and even were the previous judgment void, the one here sought would bar all her rights. Nor is any valid defense interposed by the defendant Weil, the purchaser from the grantee under the referee’s deed. He is bound by the positive averments of his answer that he is the owner and by the covenants of the deed under which he took the property expressly subject to the mortgage now sought to be foreclosed. Under these circumstances even were there adequate proof, he can claim no rights as mortgagee in possession, or of subrogation to those of the plaintiffs. The defendant Stuyvesant, who has made a contract of purchase with the defendant Weil, obviously stands in the same position as his vendor. If he shall ultimately prevail in his suit for specific performance, he will have no further interest in the property; if he shall fail, then according to his contract he takes expressly subject to the mortgage here in suit.

Finally, it is claimed that the complaint is defective in that it does not comply with section 1628 and section 1629 of the Code. Section 1628 requires leave of court to maintain a suit to recover any part of the mortgage debt where there has been final judgment for the plaintiff in an action to foreclose a mortgage upon real property, and section 1629 requires the complaint to state whether any other action has been brought to recover any part of the mortgage debt. Even were leave necessary in this suit, I should, on the theory that these sections are not jurisdictional but relate to practice merely (Reichert v. Stilwell, 67 N. Y. Supp. 1062), be disposed to.grant it nunc pro tunc. Earl v. David, 20 Hun, 527; affd. 86 N. Y. 634. The plaintiffs, however, have maintained no action' on the' mortgage debt, that is on the bond, but simply one to foreclose the mortgage, and the allegation in iheir pleading is, therefore, correct. Scofield v. Doscher, 72 N. Y. 495; Mutual Life Ins. Co. v. Smith, 19 Abb. N. C. 69.

There should be judgment for the plaintiffs, with costs.

Judgment for plaintiffs, with costs. '  