
    In the Matter of East River Savings Bank. Nathaniel L. Goldstein, as Attorney-General of the State of New York, Appellant; Dunwoodie Golf Club Land Co., Inc., Respondent.
    Third Department,
    November 15, 1944.
    
      Nathaniel L. Goldstein, Attorney-General, for appellant.
    
      Bernard, Remsen, Nobiletti & Millham, attorneys for respondent.
   Per Curiam.

This appeal from an order of the Albany Special Term directs that the State pay an award of $11,000 to the East River Savings Bank, credit therefor to be given on .the mortgage which it holds against the Dunwoodie Golf Club Land Co., Inc. It is a sequel to the transactions described in East River Savings Bank v. State of New York (266 App. Div. 494).

In the beginning, as recited in the earlier case, the State dealt solely with the Golf Club, owner of the real property, and. an agreement was made that the land for the grade crossing elimination would be conveyed in consideration of $2,000 cash payment and the relocation and grading of the Club entrance known as Grace Avenue. The State relocated and graded Grace Avenue at an expense slightly above $2,500, and now asks that as to the amount of the award made by the Court of Claims in excess of the agreed price of the land between the owner and itself, it be subrogated to the rights of the mortgagee, its claim upon the owner’s land to be subsequent to the Bank’s claim. Under the authority of Matter of City of New York (Braddock Ave.) (278 N. Y. 163) the State is entitled to subrogation as to $9,000 because the owner contracted to convey the premises in fee for $2,000 and the work incident to the relocation of the entrance. This it will receive in full and $9,000 will still remain which the State was compelled to pay to the mortgagee. The State’s claim is subsequent to the remaining mortgage debt, but the owner is not entitled to credit, for it has received the entire amount for which it contracted to sell the property.

The order should be reversed on the law and subrogation directed as prayed by the State.

All concur.

Order reversed on the law, with costs, and subrogation directed as prayed by the State.  