
    Moe Paris and Others, Respondents, v. Lawyers Title Insurance and Trust Company, Appellant, Impleaded with David Kratenstein and Joseph Weinstein, Respondents, and Little Giant Realty Company and Others, Defendants.
    Second Department,
    December 30, 1910.
    Mortgages — mechanics’ liens — priority.
    Suit to foreclose a mortgage which the plaintiff by agreement bad subordinated to subsequent mortgages held by a title insurance company. Mechanics’ liens -bad been filéd against the premises which were entitled to priority over the mortgages held by the 'title company.’ The owner having conveyed the premises became insolvent, and in a bankruptcy proceeding against him the lienors, with knowledge of the title company’s mortgage, executed a release to the bankrupt which, however, was' placed in escrow, not. to be delivered to the bankrupt until the final determination of a certain action and an adjudication therein of the rights of the lienors.' The delivery was to be made irrespective of any personal judgment that might be rendered against the bankrupt by virtue of said liens; but it was provided that the releases were ' not to be construed as a waiver of any rights under said liens except as set forth. On the issue as to whether the mortgage held by the title company had priority over the liens,
    
      Held, that the lienors by their release retained all rights save that of a personal judgment against the bankrupt;
    That as. the plaintiff’s mortgage which was superior to the liens had been subordinated to the defendant’s mortgage, the latter was entitled to priority to the amount of the plaintiff’s mortgage; that the mechanics’ liens then intervened and then the lien of the title company’s mortgage followed up to the amount which with the liens would make the total of the title company’s mortgage; that the plaintiff’s mortgage then followed.
    Thomas, J., dissented. ’ . ,
    Appeal by the defendant, the Lawyers Title Insurance and Trust Company, from a judgment of the' Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of July, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term in an action brought to foreclose a second mortgage Jor $15,000 upon certain lots in the borough of Brooklyn.
    
      Philip 8. Dean, for the -appellant.
    
      
      Charles Meyers, for the plaintiffs, respondents.
    
      Abraham JEL. Spigelgass [ Joseph J. Schwartz with him on the brief], for the respondents Kratenstein and Weinstein.
   Woodward, J.:

Plaintiff was the owner of a second mortgage upon ten lots on Sixty-fifth street, borough of Brooklyn, and this action was brought to foreclose the same. The defendant, Lawyers Title Insurance and Trust Company, is the owner of ten mortgages of $2,750 each on the premises covered by the first mortgage. These mortgages were subsequent in point of time to the mortgage of the plaintiff, but the latter had, by a written agreement, been subordinated to the mortgages of the defendant. The defendant’s mortgages were executed and the money advanced on them on the 27th day of July, 1909, but were not recorded until one'o’clock and forty-five minutes of the following day. On the morning of July 28, 1909, three mechanics’ liens were filed against the premises, and it is not disputed that these liens were filed prior to the mortgages of the defendants. One of these liens was held to be defective, and a second one is not contested here, so that the only lien which is before this court is the one filed by Kratenstein & Weinstein, plumbers, who had furnished materials and labor under contracts with one Samuel Silver-stein, the owner of the mortgaged premises until the 27th day of July, 1909, on which date the latter conveyed said premises to the Little Giant Realty Company, and this company executed the mortgages to the Lawyers Title Insurance and Trust Company, and the sole question raised on this appeal is the disposition properly to be made of the Kratenstein & Weinstein lien. The court held that the plaintiff’s mortgage, being an old ground mortgage, was superior' to the lien; that this mortgage having been' subordinated to the defendant’s mortgage, the latter was entitled to priority to the amount of the second mortgage, or for $15,000, and that the lien then intervened, and the.Lawyers Title Insurance and Trust Company’s mortgages followed up to an amount which, with the lien, would make the total of such mortgages, or $27,500, and then the plaintiff’s mortgage, followed by the amount still due on the title company’s mortgages.

The plaintiff does not complain at this disposition of the" case, and we are unable to discover any reason why the 'plaintiff’s interests should be regarded as involved in this appeal; .the controversy is between the defendants the title company and Kratenstein & Weinstein. The title company claims a right to priority over the lien by reason of the fact that the lienors had contracted with Silverstein to furnish materials and labor for the improvement of the mortgaged premises, which was the basis of the lien; that immediately after the transfer of the premises in question to the Little Giant Kealty Company Silverstein disappeared, and in a bankruptcy proceeding against him after long.'negotiations the proceeding- was dismissed, the lienors receiving $1,000, and, with knowledge of the title' company’s mortgages, executed to Silverstein a general release, it being claimed that this operated to prevent the lienors from assigning their ^claims against Silverstein to. the title company in the event of the latter paying the lien, thus defeating subrogation.

. But the lienors have never delivered the release to Silverstein; this release was delivered in escrow, to be delivered to Silver-stein upon the happening of a particular event. That event was the final determination of “a certain action entitled Paris v. Little Giant Realty Company et al., and a determination of the rights of Bailey & Tannenbaum and Kratenstein & Weinstein under two certain mechanics’' liens .filed by them against .property, 65th Street', Bklyn., at this time owned by S. Silverstein; Upon a final determination. of the rights under said liens said ' releases are. to be delivered to S. Silverstein irrespective of any personal judgment that maybe entered against him by virtue of said liens. The said releases shall.not be construed as a waiver of any rights under said liens except as herein set forth.” There has never been any'final determination of the rights of these mechanics’ liens until the determination ,of this action, so far as appears from the record, .and the release is not to be delivered if it operates to deprive the lienors of “ any rights under said liens except as herein set forth,” and the object of the release was to get rid of the bankruptcy, proceeding, and to protect Silverstein against a personal judgment growing out of the lien. It does, not appear that there will ever be a personal judgment against Silverstein, and in respect to all other rights growing out of the lien, the lienors have surrendered nothing; they are in a position to assign them to the defendant appellant at any time. We are of the opinion that the learned court below has properly disposed of the questions involved as appears from the record, and as the evidence is not printed, there is no way for entering upon a review of the facts. The difficulties- presented by this case grow out of the fact that the learned court, in finding the facts, has found some of them as requested by each of three parties, and there is a lack .of that concise grouping of .facts which the Code contemplates, and which is necessary for a scientific application of the law. There are practically three different findings of fact involving in substance one single transaction, and varying only in the viewpoint of the party making the request, and it is difficult oil a review of the judgment roll only to harmonize this situation with all rules of law, but we are persuaded that the result reached is the proper one, and that the judgment appealed from should bé affirmed.

The judgment should be affirmed, with costs.

Hirsciiberg, P. J., Jenics and Rich, JJ., concurred; Thomas, J., dissented.

Judgment affirmed, with costs.  