
    Samuel Kadin, Plaintiff, v. Rachel Samuels, Defendant.
    (Supreme Court, New York Special Term,
    July, 1907.)
    Foreclosure of mortgages on land — Redemption — Tender or payment into court.
    Subrogation — Rights of junior incumbrancer.
    After an action has been commenced for the foreclosure of a mortgage and the summons has been served on the parties primarily liable for the mortgage debt, a party having an interest sufficient to found a right to subrogation who has not yet been served with process cannot, by tendering the mortgage debt without .the costs of the suit, entitle herself to an assignment of the bond and mortgage.
    Action for the foreclosure of a mortgage on real property.
    J. Cohn, for plaintiff.
    H. E. Heistad, for defendant.
   Bischoff, J.

The single question presented upon the agreed state of facts is whether a tender by the defendant, Eachel Samuels, in the sum of $1,653 to the plaintiff was sufficient to entitle her to an assignment of the mortgage, which is sought to he foreclosed in this action. At the time the tender was made the action had already been commenced against the persons primarily liable, and had the tender been made on the part of these persons, it would undoubtedly have been insufficient in that it did not include the amount of costs as accrued in the action to the date of the tender. Eaton v. Wells, 82 1ST. T. 576-579. The defendant, Samuels, was thereafter served with a summons, and alleged the tender, and her contention now is that at the time of the tender she was in the position of a person against whom an action had not been commenced, and who thereafter had the right to insist upon such subrogation as she was entitled to, without the payment of costs. As I view the ease this position is not tenabl e, Assuming that this party who made the tender had a sufficient interest to support the right of subrogation, her claim was necessarily founded upon some relation in which she stood to the principal defendants, and she could assert her right to subrogation, if at all, with the incidental burdens incurred. One burden was the payment of costs, and the action having been commenced • and the costs having accrued as against the persons to whom the plaintiff was entitled to look for satisfaction of the claim, there is no principle of equity which could permit a party, whose interest is subordinate, to obtain the benefit of subrogation without being placed in the position of the necessary parties against whom the liability is primarily asserted. There should be judgment for the plaintiff for the amount due, with interest and costs.

Judgment for plaintiff.  