
    Thomas H. Robbins, App’lt, v. Edwin Beers et al., Resp’ts.
    
      (Supreme Court, General. Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Foreclosure—Junior mortgagees not made parties.
    The purchaser at a sale on a foreclosure to which junior mortgagees were not made parties cannot maintain an action to compel them to pay his mortgage and improvements made by him or be foreclosed of all right of title and equity of redemption. The rights of the purchaser may be asserted and protected in any action such mortgagees may institute to foreclose, but he cannot compel them to pay his mortgage and improvements. Their rights remain unimpaired by the foreclosure.
    Appeal from judgment dismissing complaint.
    Action of strict foreclosure.
    
      Francis S. Turner (T. G. Barry, of counsel), for app’lt; G. G. & F. Reynolds, for resp’ts.
   Dykman, J.

Spencer Aldrich held a mortgage upon the real property described in the complaint in this action, which was the first lien thereon. Beers and Ressigue held a mortgage upon the same premises which was a second lien thereon.

Aldrich commenced an action to foreclose his mortgage without making the defendants Beers and Ressigue parties thereto. The action proceeded to judgment and sale. Aldrich became the purchaser at the sale and assigned his bid to the plaintiff in this action, who received the referee’s deed, went into possession and expended over $20,000 in permanent improvements.

This action is commenced to compel the defendants, Beers and Ressigue, to pay the amount of the first mortgage and the money expended by the plaintiff for improvements upon the property.

The cause was tried at special term and decided against the plaintiff, and he has appealed from the judgment entpred against him upon such decision.

We are aware of no principle of law which will permit the plaintiff to take the relief he desires in this action.

The defendants were not made parties to the foreclosure suit and they stand with their mortgage as if no such suit had been commenced.

They hold a second mortgage upon the premises with their rights as such holders unimpaired, but certainly no 'additional burden or obligation was imposed upon them by the foreclosure action.

Whatever the rights of the plaintiff may be, they can be asserted and protected in any action the defendants may institute to foreclose their mortgage, but he cannot now compel them to pay him for his mortgage or his improvements.

They may or may not foreclose their mortgage. If they do not, they incur no liability. If they do, they can detract nothing from the rights of the plaintiff.

They certainly have the right to remain inactive, and that is all they have done so far.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.  