
    Alice Davies, Plaintiff, v. Alfred Freund, Appellant, Impleaded with Caroline Freund and Others, Defendants. David Davies, as Administrator, etc., of Alice Davies, Deceased, Respondent.
    First Department,
    October 25, 1912.
    Mortgage—foreclosure of junior mortgage deficiency judgment — sale under prior mortgage — laches — res adjudicata.
    A personal judgment may be entered against the obligor on a bond under an interlocutory judgment foreclosing a junior mortgage, although no sale has been had pursuant to the judgment owing to the fact that after the entry thereof the property was sold on the foreclosure of a prior mortgage which sale resulted in a deficiency.
    
      Such judgment for deficiency should not be denied upon the ground of laches in entering the judgment if the delay has not prejudiced the obligor or changed the relative positions of the parties, especially where the time within which an action might have been brought upon the bond has not expired.
    After the entry of an interlocutory judgment of foreclosure and sale the obligor upon the bond cannot contest an application for a judgment for a deficiency upon the ground that he never executed the bond or mortgage, for the interlocutory judgment is conclusive against him on that issue.
    Appeal by the defendant, Alfred Freund, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of July, 1912, substituting the administrator of Alice Davies, deceased, as plaintiff herein and directing final judgment in his favor.
    
      Jerome H. Koehler, for the appellant.
    
      Herman Roth, for the respondent.
   Scott, J.:

On February 25, 1898, Alice Davies, now deceased, recovered an interlocutory judgment of foreclosure and sale affecting real estate in the city of New York. Said judgment contained the usual provision that, if any deficiency should result said plaintiff should be entitled to a personal judgment against the appellant Albert Freund, the obligor upon the bond.

No sale was in fact had under said judgment for the reason that, after the entry thereof, the property was sold under the foreclosure of a prior mortgage, and such sale resulted in a deficiency. Alice Davies died in 1907, and in 1912 the respondent was appointed her administrator. Until the making of the present motion, nothing has been done with respect to the enforcement of the judgment. The motion was resisted partly upon the ground of the laches of respondent and his intestate, and partly upon the ground that appellant now claims and seeks an opportunity to prove that he never signed the bond and mortgage. He also insists that the court has no power to award a personal judgment against him, because under the terms of the interlocutory decree such a personal judgment could only follow upon an actual sale and the ascertainment of the amount of the deficiency, if any, by that means.

This last objection would seem to have been fully met by the case of Frank v. Davis (135 N. Y. 275), where the precise question was decided adversely to the appellant’s contention. The contrary view had theretofore- prevailed in this department. (Loeb v. Willis, 22 Hun, 508; Frank v. Davis, 61 id. 496.) The Court of Appeals reversed the latter case, and while it did not in terms mention Loeb v. Willis, it could not have overlooked it, because it was expressly cited and relied upon by the General Term in Frank v. Davis. It would seem, therefore, that the plaintiff is entitled to enter a personal judgment for the undisputed deficiency, unless the appellant or his intestate have in some way forfeited the right.

It is contended on the part of the appellant that the considerable delay in entering the judgment constitutes such laches as should deprive respondent of the right to now enter judgment. It is not asserted that the delay has resulted in any prejudice to the appellant, or that the relative situation of the parties had in any way been changed. Under these circumstances mere delay is not considered to effectually bar a remedy, especially since the time within which an action might be brought at law upon the bond — a sealed instrument — has not expired.

The appellant’s real object appears to be to contest the question whether or not he ever executed the bond and mortgage. That question, however, was necessarily decided against him before the interlocutory judgment was entered, and as he never appealed from that judgment, it stands as a conclusive adjudication against him that he did execute the- bond and mortgage and would be conclusive against him upon that question even if the plaintiff was remitted to an action upon the bond.

The order appealed from was right and should be affirmed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  