
    (71 Hun, 117.)
    MUTUAL LIFE INS. CO. OF NEW YORK v. VOORHIS et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Right to Land under Water- -Mortgage of Upland.
    A mortgage of land bounded by navigable water does not pass title to the adjacent land under the water where the mortgagor procured a grant thereof from the state on an application made after the mortgage of the upland.
    Appeal from special term, Rockland county.
    Action by the Mutual Life Insurance Company of New York against Annie Voorhis and others to have certain land declared subject to the lien of a mortgage, and for incidental relief. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Sawyer & Getty, (Merritt E. Sawyer, of counsel,) for appellant.
    Mathias Banta, for respondents Annie Van Voorhis and others.
    John M. Rider, for respondent John Salisbury.
   BARNARD, P. J.

Peter Voorhis owned a lot of land in Nyack, Rockland county, bounded on the east by the Hudson river. On the 25th of April, 1872, he executed a mortgage, in which his wife joined, to the plaintiff, to secure a loan of $40,000. This mortgage was foreclosed, and on the 23d of July, 1873, was sold under a decree in the foreclosure action. The plaintiff bought in the property for $10,000, and duly entered a judgment for the deficiency, which was $32,853.40, on the 9th of December, 1880. On the 30 th day of November, 1872, Peter Voorhis applied to the commissioners of the land office for a grant of land under water adjacent to this mortgaged property, and also in front of two other pieces he owned, adjoining the same. The grant was made upon the petition of Voorhis that he was the owner of the upland, and in occupation of the same, and that the grant was needed for the beneficial enjoyment of the adjoining uplands for shipping stone quarried on the uplands, and that the petitioner intended to build a dock for public steamboat uses and general purposes. Upon due publication of the notice of application the people of the state of New York granted the lands under water “for the purpose of promoting the commerce of our said state, or for the beneficial enjoyment of the adjacent owner,” on the 23d of July, 1873. Peter Voorhis died in the next year. The defendants are the heirs at law of the deceased. The question is, what interest the facts gave the plaintiff in the lands under water in front of the mortgaged upland. A grant to any. other person than the upland owner is void. Chapter 283, Laws 1850. The applicant, Voorhis, was the owner of the land up to the sale under foreclosure. Before that time the mortgage was simply a security. Plaintiff had no other interest in the land than to be paid out of it. Morris v. Mowatt, 2 Paige, 586; Waring v. Smyth, 2 Barb. Ch. 119; Astor v. Miller, 2 Paige, 68; Gardner v. Heartt, 3 Denio, 232; Astor v. Hoyt, 5 Wend. 603; Calkins v. Calkins, 3 Barb. 305. The description in the mortgage did not include the lands under water. .When it was given, Voorhis, the mortgagor, had no interest in it. The lands belonged to the state. People v. Canal Appraisers, 33 N. Y. 461; Ledyard v. Ten Eyck, 36 Barb. 102. The court of appeals, in Gould v. Railroad Co., 6 N. Y. 522, held that the owner of the upland had no other right than all others in the lands under water, and, while this principle is questioned in Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. Rep. 654, no question is made as to the title being in the people as to lands between high-water mark and under water. Rumsey v. Railroad Co., 114 N. Y. 423, 21 N. E. Rep. 1066; People v. New York & S. I. Ferry Co., 68 N. Y. 71; Blakslee Manuf'g Co. v. Blakslee’s Sons Iron Works, 129 N. Y. 155, 29 N. E. Rep. 2. The foreclosure sale did not, therefore, extend a title in lands not covered by it. The mortgaged lands were not extended by the mortgage being on tide water, as the lands under water then belonged to the sovereign. The title Voorhis took was absolute and unconditional. Abbott v. Curran, 98 N. Y. 665. The patentee, being the owner of the upland thereof, got a good title, and, if any right was obtained by the foreclosure sale, it was a right to sue for damages for an injury to the right of the upland to go to the river. This right was destroyed by the upland owner himself, and the mortgagee got the land covered by the mortgage.

The judgment should be affirmed, with costs. All concur.  