
    Edward L. Woolf and Others, Appellants, v. Leicester Realty Company and Others, Respondents.
    First Department,
    November 12, 1909.
    Foreclosure — mortgage — condemnation of easement pending suit — modification of terms of sale—application of award to payment of prior liens.
    Where, subsequent to an action of foreclosure and at the date of an interlocutory decree for sale, a city acquired an easement in the property for the construction and maintenance of a sewer and made an award to the mortgagors, the decree should be amended so as to exempt the easement from the sale as under the circumstances it cannot be sold on foreclosure even though the lien of the mortgage attaches to the award.
    A motion to apply the award to the payment of accumulated taxes and assessments is premature if made at a time .when it is impossible to say that the necessity will arise. The mortgagee should first resort to the land.
    
      Appeal by the plaintiffs, Edward L. Woolf and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 4tli day of Hay, 1909.
    
      Irving Paine, for the appellants.
    
      Philip B. La Roche, Jr., for the respondents.
   Scott, J.:

This is an appeal by plaintiffs from an order denying their motion to amend the judgment of foreclosure and sale herein so as to except from the description of the premises to be sold a certain easement in the mortgaged property acquired by the city of Yew York subsequent to the making of the mortgage, and also providing for the application to the payment of certain accrued taxes and assessments of the amount of the award made for the easement.

As to the first branch of the motion the facts are that plaintiffs hold a mortgage, executed by defendants’ grantor, on Hay 4, 1905, covering certain premises in the city of Yew York. On March 18, 1908, this action was begun to foreclose the mortgage, and on Hay 29, 1908, a judgment of foreclosure and sale was entered, being the judgment now sought to be amended. In the meantime the city of Yew York had instituted condemnation proceedings for the purpose of acquiring an easement in the mortgaged property for the construction and maintenance of a sewer. The commissioners of estimate awarded $9,206.49 to the owners of the land as the value of the easement taken, and their report was confirmed on Hay 29, 1908, on which date the city acquired the easement. By agreement with the owners of the land the attorney who represented them in the condemnation proceeding became entitled, as against said owners, to twenty-five per cent of the award as his fee. The plaintiffs, as part of their motion, desire to so amend the decree of foreclosure as to add to the description of the property to be sold an exception of the easement in the mortgaged land which has been acquired by the city. To this extent the motion should have been granted. The city of Yew York having, by right of eminent domain, acquired a part of the mortgaged premises, for that is what a permanent easement amounts to, that part is no longer covered by the mortgage and cannot be sold under the judgment of foreclosure. The referee is purely a ministerial officer and must follow exactly the provisions of the decree. He cannot, of his own motion, offer for sale less than the decree directs him to sell, and yet he cannot sell the property as now described in the decree, and if he undertook to do so the purchaser could not be compelled to accept the deed. So far as concerns that branch of the motion which asks that the award be applied to the payment of the accumulated taxes and assessments, the application is premature. It is probably true that the lien of the mortgage attaches to the award, and that the plaintiffs will be entitled if necessary to have that award applied to the satisfaction of the mortgage debt, or to the payment of the taxes, which are superior liens to the mortgage. But it cannot be known now that any such necessity will arise. The mortgagee should first have resort to what remains of the mortgaged premises. If upon a sale it shall appear that the purchase price will not suffice to pay the mortgage debt and the prior liens, it will be time enough to ask for the application of the award or some part of it to the payment of such debt and liens.

The order appealed from must, therefore, be reversed in so far as it denied the motion to amend the judgment, and the motion to that extent granted. In so far as the order denied the motion to apply the award to the payment of accrued taxes and assessments it is affirmed, with leave to plaintiffs to renew the motion, or make such motion in respect thereto as they may be advised, without costs to either party in this court.

Ingbaham, Laitghlin, Clabke and Houghton, JT., concurred.

Order reversed in part, and motion granted to extent stated in opinion, and in part affirmed, with leave to plaintiffs to renew. Settle order on notice.  