
    Buffalo Savings Bank, Plaintiff, v. The Polish Roman Catholic Church of the Holy Mother of the Rosary of Buffalo et al., Respondents, and The Pendock Company, Respondent and Appellant. The Diocese of Buffalo, Intervenor, Appellant and Respondent; John Czajka et al., Intervenors, Respondents.
    (Argued April 29, 1915;
    decided July 13, 1915.)
    
      Buffalo Savings Bank v. Polish R. 0. Church, etc., Buffalo, 166 App. Div. 960, affirmed,
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 15, 1915, modifying and affirming as modified an order of the Erie County Court in an action to foreclose a mortgage held by the plaintiff bank against the defendant Polish church. Judgment of foreclosure and sale was taken by default. The property was sold under the judgment and the diocese of Buffalo acquired title through the purchaser at the sale and went into possession. The trustees of the Polish church moved to vacate the sale on the ground that the purchaser at the sale had agreed to bid in the premises for them. The County Court denied the motion but the Appellate Division reversed the order and directed a resale upon compliance by the church with certain conditions. The church then agreed in writing, for a good and valuable consideration, that the diocese should remain in possession until the resale. While the resale was proceeding, the Pendock Company made a motion in the foreclosure action in the County Court to be permitted to redeem as a judgment creditor and also on behalf of the church, and that the church be reinstated in possession. This motion was opposed by the diocese and by certain judgment creditors of the church. The court granted the motion upon certain conditions.
    The following questions were certified:
    “1. Is the Pendock Company entitled, on motion in the action of foreclosure, to redeem from the mortgage debt, or to be subrogated to the rights of the plaintiff mortgagee ?
    
      “2. Is the Pendock Company or the defendant church corporation entitled to an order on this motion in the foreclosure action terminating the possession of the premises by the Diocese of Buffalo before there has been a definite accounting between said Diocese and the defendant church corporation growing out of the use and occupation of the premises by the Diocese and payment to the Diocese of the amount, if any, found due it upon such accounting %
    
    
      “ 3. Can such accounting be had and the possession of the Diocese of Buffalo be terminated, except in an independent action for such relief or for redemption %
    
    “ 4. Is the Diocese of Buffalo entitled to have the premises resold and to remain in possession thereof until a resale is had % ”
    
      “5. Is the Pendock Company or the defendant church entitled to the relief awarded by the order on terms fixed by the County Court without meeting the additional requirements imposed by the Appellate Division in modifying and affirming the order ? ”
    
      Daniel J. Kenefick and Charles L. O’Connor for Diocese of Buffalo, appellant and respondent.
    
      Henry Adsit Bull, Charles B. Bears and John Lord O’Brian for Pendock Company et ah, respondents and appellants.
    
      Bichard L. Ball for John Czajlta et al., respondents.
   Order affirmed, without costs. Under the circumstances of this case the court in its discretion had the power to make the order which it made, and, therefore, the questions certified are answered as follows: First, second and third questions answered in the affirmative; fourth and fifth questions in the negative; no opinion.

Concur: Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback, Hogan and Oardozo, JJ. Seabury, J., dissents as to the answer to the fifth question.  