
    Henry De Forest Weekes, Appellant, v. James McCormick, Respondent, Impleaded with Others.
    
      Foreclosure — not stayed, at the suit of a subsequent inctmbrancer, to await the determination of condemnation proceedings — proof of the mortgage in the condemnation proceedings'it does not bar the foreclosure.
    
    In an action brought for the foreclosure of a mortgage, a .stay, until the conclusion of condemnation proceedings affecting the mortgaged premises, which proceedings. have been running for two years, and are likely to run two years longer, should not be granted on the application of the holder of a subsequent mortgage — certainly not unless adequate security is given that the property will finally sell for enough to cover the expenses of the salé and the amount due upon the plaintiff’s mortgage, with interest and costs. 1 Proof, by the- plaintiff in the action, of his mortgage, in the condemnation proceedings, does not bar his right to foreclose.-
    Appeal by the plaintiff, Henry De Forest Weelces', from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county -of Hew York on the 12th day of March, 1897, as stays the sale of the premises sought to be foreclosed in the action until the conclusion of condemnation proceedings taken on behalf of the mayor, aider-men and commonalty of the -city of Hew York to take certain property, including the mortgaged premises, for- park purposes.
    
      Arthur D> Weekes and John A. Weekes, Jr., for the- appellant.
    
      Franklin Bien, for the respondent.
   Williams, J.:

The - mortgage being foreclosed was the fourth mortgage upon the property to be sold. The title acquired by the purchaser would be subject to three- prior- mortgages, aggregating $41,000,. besides some interest. There were unpaid taxes and .water-rate liens against the property, amounting to $1,500. The mortgage being foreclosed, with interest, amounted■ to upwards óf $4,200. The liens on .the property, down to and' including plaintiff’s mortgage arid costs of the action, thus amounted to about $47,000. The only proof as to the value of the mortgaged property was that, in- 1890, it was sold for $46,000. The respondent was a defendant in the foreclosure action, having a fifth mortgage upon the property of $15,000. He did not answer in the action, and never appeared therein until the motion for a confirmation of the referee’s report and for judgment was made, and he then appeared and asked for and procured the clause to be inserted in the order staying proceedings, from which clause this appeal is taken. The condemnation proceedings had been running two years, and were likely to run two years longer. Whatever may be said as to the power to grant a stay of proceedings at all, we certainly think the court was not authorized to grant the stay without requiring some security from the respondent to protect the plaintiff from loss that might result from the stay. It may well be said that the defendant’s interests would be best served by staying the sale until the termination of the- condemnation proceedings, but if he desired such a stay for his own protection he should have been required to bear the burden and take the chances himself and not compel the plaintiff to take all the risk. The plaintiff had a right to foreclose his mortgage, to move along and have a sale of the property under his judgment. He could protect his interests on the sale. His right to so proceed and have the sale made certainly should not have been interfered with or taken away for the benefit of a subsequent incumbrancer, unless the party ashing for the stay was willing to and should give adequate security that he, the plaintiff, would not suffer by the delay. He should have been required to give security that the property would finally sell for enough to cover the expenses of the sale and the amount due upon plaintiff’s mortgage, with interest and costs.

The plaintiff was in no way precluded from proceeding with his mortgage foreclosure by proving his mortgage in the condemnation proceedings.

We think the clause in the order appealed from should be reversed, with costs of the appeal, and a sale ordered in the usual form.

Van Brunt, B. J., Rumsey, Patterson and Parker, JJ., concurred.

The clause appealed from in order reversed, with ten dollars costs, and disbursements, and a sale ordered in the usual form. .  