
    LIVINGSTON a. PAINTER.
    
      Supreme Court, First District;
    
    
      General Term, February, 1865.
    Action fob Specific Pebfobmance of Agbeement to Pat Off Pabt of Mobtgage.
    Where an agreement was made between the holders of the first and second mortgages, respectively, upon leasehold property, that the holder of the first mortgage would waive a default, which gave him the right to foreclose it immediately, in consideration that the holder of the second would foreclose his mortgage immediately, and that if he should buy at the foreclosure he would pay the sum of $3,000, on account of the first mortgage within six months ;— Held, that the holder of the first mortgage could sustain an action against the holder of the second mortgage, and a third person in whose name he was alleged .to have bought in the premises at such foreclosure, to have such purchase set aside so far as it prevented specific performance of the agreement; | and to have the holder of the second mortgage adjudged to pay the plaintiff $3,000 upon account of the first mortgage.
    Appeal from an order dismissing a complaint upon the trial.
    This was an action brought by Robert J$ Livingston against Jane A. Painter, administratrix, &c., and one Boyes, to obtain the specific performance of an agreement.
    The plaintiff alleged an agreement between one Hamilton, the assignor of the plaintiff, and defendant Painter, who was the owner of a second mortgage of a leasehold (No. 84 Leonard-street), which mortgage was made by one Seabury Lawrence to one John Sniffen and others, to secnre the payment of §12,340. The agreement recited that Painter had commenced proceedings to foreclose this mortgage; that Hamilton, the assignor of the plaintiff, was owner of a first mortgage, made by the said Lawrence on the same premises, to secure the payment ot §12,000, which had become due at the option of Hamilton, according to a provision in the mortgage; but that he had agreed to waive this option, and that Painter, in consideration of the sum of one dollar, and of the agreement made by Hamilton, agreed,—1st. To pay within forty:five days the semi-annual interest in arrear on said first mortgage, and all taxes and assessments due upon the premises; 2d. To procure the foreclosure of the second mortgage to the earliest possible conclusion; and, 3d. In the event of Painter’s buying in his own name, or other- ■ wise, at the sale under the said foreclosure, the said leasehold interest subject to the first mortgage, he should reduce the same by payment, on account, of the sum of §3,000, within six months from the date of the agreement.
    The complaint alleged that Painter prosecuted the foreclosure of the second mortgage to judgment of foreclosure and sale ; that under this judgment the leasehold was sold at public auction ; that the same was purchased at the sale by the defendant Boyes for $2,000, and that the sheriff executed a deed thereof to Boys, subject to the first mortgage.
    The complaint further alleged that Painter purchased the leasehold at the said sale, in the name of Boyes, for the purpose of evading the terms of said agreement, and that Painter was really the owner of the beneficial interest in the said purchase.
    On the trial of the cause at special term, the defendants moved to dismiss the complaint, on the ground that it did not present a case for the equitable interposition of the court; which motion tire court granted, holding that although it is not essential to granting specific relief that the subject of it must be real property, yet it should not be granted in such a case as this ; for although the plaintiff hereby would not be permitted, under his agreement, to foreclose his mortgage immediately, if the defendant should tender the §3,000; still, the mortgage being as effectual as ever, and the only injury sustained by him. being his delay in prosecuting its foreclosure, his remedy must be by an action for damages.
    From this judgment the .plaintiff appealed.
    
      Lewis L. Delafield, for the appellant.
    
      R. M. Harrington, for the respondents.
   By the Court.—Sutherland, J.

The agreement of Painter, the holder of the second mortgage, if he bought “ in his own name or otherwise,” at the sale under -the foreclosure of his mortgage, that then he should and' would reduce the principal sum secured by the first mortgage (held by Hamilton as executor, &c.), by paying on account of the same $3,000, was a lawful and valid agreement, for a sufficient and lawful' consideration ; the consideration being the agreement of Hamilton to waive his option of considering the whole principal of his mortgage due and payable for non-payment of interest; and Painter avers in his answer that Hamilton in fact waived his option to consider the whole principal due, by actually, soon after the making of the agreement, receiving from him the interest. It is easy to see that this waiver by Hamilton of his right to foreclose his mortgage for the whole principal and interest might be, and probably was very beneficial to the holder of the second mortgage.

The complaint alleges in substance, that on the sale under the foreclosure of Painter’s mortgage, the defendant Boyes purchased the mortgaged premises or interests, and took the sheriff’s deed in his name, at the. instance and for the benefit of Painter, and with full knowledge of the agreement between Painter and Hamilton, for the purpose of enabling Painter to evade the agreement; and that Boyes paid no money, but gave a mortgage to Painter for the whole amount of the purchase-money.

The specific relief asked by the complaint is,—1st. That the sheriff’s deed to Boyes he declared fraudulent, inoperative, and void, so far as it prevents the specific performance of the agreement by Painter' to reduce the principal of the first mortgage by paying the $3,000 on account thereof; 2d. That the defendant Painter be adjudged to reduce the principal of the mortgage by paying the $3,000 on account thereof. The complaint also asks for general relief.

It is plain, I think, that the complaint shows a prima-facie right in the plaintiff (Hamilton’s assignee) to come into a court of equity, at least, for the purpose of obtaining the relief first specifically asked for; and if so, it is perfectly clear that a court of equity having jurisdiction for such purpose could proceed and give the relief secondly specifically asked for, though the plaintiff might have obtained such last-mentioned relief in a court of law. .

But I do not see how the plaintiff could have obtained this relief in a court of law. The relief is, that Painter be decreed to reduce the principal of the mortgage according to his agreement by paying $3,000 on account of the principal.

Certainly, a court of law could not grant this relief. The plaintiff asks for a specific performance of this agreement, and I think the proceedings show, prima facie, that he has a right to it,

I do not see how the plaintiff could recover any thing beyond nominal damages, at law, without showing that his mortgage had been foreclosed for the whole principal, and that the mortgaged premises or interests did not bring sufficient to "pay the mortgage.

It appears to me that the plaintiff’s complaint was inadvertently dismissed, as it was, on his opening and the pleadings; and that the j udgment should be reversed, and a new trial ordered, with costs to abide the event of the action.

Ingraham, J.

Even if the prayer in the complaint was merely for a sum of money, the facts averred therein show a good cause of action in equity, in which plaintiff was entitled to relief.

If so, and the court had jurisdiction, it could give such, relief as the party was entitled to, including a judgment for money, if proper.

I concur in reversing the judgment. 
      
       Present, Ingraham, P. J., Clerks and Sutherland, JJ.
     