
    Warren McConihe, Plaintiff, v. Bernhard Gies et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1906.)
    Subrogation — Order on foreclosure directing subrogation.
    Where the owner of mortgaged real estate devised the same to her husband for life with remainder to her children and a proposed vendee of the premises, upon refusing to take the title upon the ground that the power of sale given to the executor was, invalid, expressed a willingness to take the title if all the heirs would execute a deed to him, which they refused; and where one of them thereupon brought a partition suit and, after the service of the answer, at the request of the life tenant and the plaintiff in the partition suit, an action is brought to foreclose the mortgage in order that the property may be sold in accordance with the wishes of the executor and to avoid complications arising by reason of the contract of sale, a motion by one of the heirs who was also a defendant in the foreclosure action to compel an assignment of the mortgage to him should be denied, upon the plaintiff’s stipulating to take no further proceedings in the foreclosure action pending the termination of the partition suit.
    Action by the plaintiff to foreclose a mortgage made in 1885 by Lisette Gies covering 326 East Sixty-sixth street, New York city. Lisette Gies died in 1885, possessed of the mortgaged premises; and, in her last will and testament admitted to probate in the New York county surrogate’s office, she devised this real estate, subject to this mortgage, to her husband, Bernhard Gies, for life, and after his death to her eight children, share and share alike, and she appointed her husband executor with power to sell. In 1906 the executor contracted to sell the property under this power of sale, but the vendee refused to take title, claiming the power of sale was invalid. The executor received a desirable Offer for the premises from this proposed vendee, who finally stated he would take title if all the heirs would execute a deed thereof to him. This they refused to do. The father, Bernhard, then requested one of his children to bring a partition suit for the sale of this property. This was done and is now being contested and defended by Joseph Gies, one of the sons of the testatrix and the same person who is now moving this court to compel an assignment of the mortgage to him. After an answer was interposed in the partition suit, the husband and life tenant and also his daughter (plaintiff in partition) requested this plaintiff to bring this action in foreclosure in order that the property might be sold in accordance with the wishes of the executor and to avoid complications arising by reason of the contract of sale. The executor claims that the property at the present time will bring a substantially higher price than it will a few months later. It is 16 feet and 8 inches wide by 100 feet deep, and large building operators have bought the premises on each side of it and in the rear and are about to erect large apartment houses about it, cutting off the light and air from this mortgaged property. These contractors have taken an assignment of the contract of sale and, if title can be immediately obtained to the property in question by them, they will, in order to make but one large apartment instead of two, pay a price largely in excess of its present value. The son of the testatrix and also some of the other brothers and sisters desire to prevent the sale of this property. The life tenant and the daughter bringing the partition action oppose the son’s motion .to compel an assignment of this mortgage to him and ask the court to allow the plaintiff, Warren Mc-Conihe, in the foreclosure action, to hold the mortgage. Said McConihe stated in open court that he would not take any further steps in the foreclosure action until the determination of the partition suit.
    Warren McConihe of counsel for plaintiff, and also for Bernhard Gies, life tenant, and Elizabeth Gies Meyer, a remainderman, defendants.
    Louis Wendel, Jr., for defendant, Joseph Gies, a remainderman.
   Bischoff, J.

The moving defendant seeks an assignment of the mortgage not for the actual protection of his interests in the foreclosure suit, but to give him an advantage in controlling the ultimate disposal of the property as against other parties equally interested.

The court has discretion to refuse subrogation when sought by motion in an action for foreclosure (McLean v. Tompkins, 16 Abb. Pr. 24), and the facts before me lead to the conclusion that the motion should be denied, upon the plaintiff’s stipulating to take no further proceedings in this action pending the termination of the partition suit.'

Ordered accordingly.  