
    Mary J. Utter, App’lt, v. William T. Richmond, Resp’t.
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Mortgage—Lien of mortgage on award made on closing road.
    Where a public road was closed by commissioners, one of the lots fronting on the road was subject to a bond and mortgage. Held, that if after the closing of the road the diminished value of the land should prove to be less than the mortgage debt, the lien of the mortgage would extend to and embrace so much of1 the damages awarded as would make good the deficiency.
    :2. Same—When lien on award not extinguished.
    The mortgage in question was foreclosed, and upon the foreclosure there was an ascertained deficiency. The plaintiff claimed the damages awarded, through an assignment by the original owner of ,the land, and ithe defendant as the successor of the original mortgagee. It was objected "that the right of the latter was extinguished by the payment of a sum of money after the foreclosure and the development of the deficiency. As matter of fact, the payment was made in consideration of an agreement not to enter a personal judgment. Held, that the payment was confined to the surrender of the separate remedy of a personal judgment, and left the equitable lien of the mortgage on the damages awarded unaffected.
    3. Same—Land taken for public use—When damages take the place OF LAND.
    Where land is taken for public use, the damages awarded take the place of the land in respect to all the rights and interests which were dependent upon and incident to it.
    Appeal from a judgment of the New York superior --.court, general term, affirming a judgment in favor of the .defendant.
    
      E. C. Boardman, for app’lt; John A. Beall, for resp’t.
   Finch, J.

The Bloomingade road was closed by the filing -of the map of the commissioners of the Central Park in 1868. One of the lots fronting on that road, and so dam.aged by its closing, was at that date owned by Frank A. Utter who had bought it in 1866 giving to his vendor a bond and mortgage upon the lot to secure a portion of the purchase money. The loss and injury sustained by the •closing of the road was a diminution of the value of the lot and affected both the security of the mortgagee and the interest of the owner, and the damages to be awarded of necessity attached to the respective rights of the parties and stood in the place of the value so abstracted from the land. If after the closing of the road the diminished value of the lot should prove to be less than the mortgage debt the lien of the mortgage would extend to and embrace so much of the damages awarded as should be needed to make good the deficiency. To say the contrary would be to admit, that the mortgagor might withdraw from the lien a part of. the value which he had subjected to its control.

The mortgage was foreclosed in 1877 at which date the land had been conveyed by Utter to one Wagner who had assumed the payment of the mortgage. The result of the-foreclosure was an ascertained deficiency of over thirteen hundred dollars for which the mortgagee was entitled to-enter a personal judgment against Utter.

In 1880 the assessment for closing the road was confirmed and for the injury done to the lot in question damages to-the amount of $1,770 were awarded to the unknown owners. The controversy here is as to the ownership of that award as between mortgagor and mortgagee, for the plaintiff claims the damages through an assignment of the same by Utter, and the defendant as the successor and representative of the original mortgagee.

It is first claimed that the right of the latter was extinguished by a payment of $200 made by Utter to the mortgagee after the foreclosure sale and the consequent development of a deficiency. The facts connected with that payment indicate that it was' made to avoid the entry of a personal judgment against Utter, and the finding of the trial court is to that effect. The mortgagee had a double-security for his deficiency, consisting on the one hand of' the mortgage lien upon the damages to be awarded, and on the other of the personal responsibility of the mortgagor. The latter might be released without affecting the former' so long as the unsatisfied portion of the mortgage debt was, not itself discharged. The finding is that the payment-was in consideration of an agreement not- to enter a personal judgment, and, therefore, confined to a surrender of that particular remedy and leaving the mortgage debt unaffected so far as it remained unpaid. That finding leaves-the debt and the equitable lien for its payment upon the award to be made entirely outside of the new contract, and. limits the operation of the latter to the separate remedy of a personal judgment.

The equitable lien of the mortgage upon the damages-awarded is then denied; but its existence is perfectly well settled. Bank of Auburn v. Roberts, 44 N. Y., 192; In re Eleventh Ave., 81 id., 436.

No doctrine could be more clearly just than that when, land is taken for public use the damages awarded are to-take the place of the land in respect to all the rights- and interests which were dependent upon and incident to it. No different rule was in any manner held or intimated in King v. The Mayor (102 N. Y., 172; (1 N. Y. State Rep., 401), upon which the appellant relies. There the right to-an award had accrued, and the land value been diminished before the convey anee was made under which the grantee 'Claimed the damages, and we held that the land, already .shorn of its easement, was the subject transferred, and the right to the award did not pass by the deed. Here the land was mortgaged with its access to and frontage upon the road, and the lien created upon the lot included the appurtenant easement, and when that was taken away it was cut off from the lien of the mortgagee as well as from the fee of the mortgagor. The case cited bears no analogy to the one before us.

The judgment rendered was both just and lawful, and should be affirmed, with costs.

All concur.  