#### Dora Pines, Respondent, *v.*Sadie Novick and Others, Defendants, Impleaded with Eagle Savings and Loan Company, Appellant.

(Appeal No. 2.)

Second Department,

May 25, 1915.

Judgment — decree foreclosing tax lien opened on motion of junior mortgagee after default — purchase of tax lien on behalf of mortgagor — duty of mortgagor to pay taxes — issues not determinable on motion to open default.

A judgment foreclosing a tax lien on property in the city of New Yom and directing a sale of the lands entered on the default of a j unior mortgagee, as to whom it was merely alleged that it had failed to pay interest on the tax lien within the statutory period, will be opened on the motion of said mortgagee, where it is shown that after judgment it was discovered that the owner of the mortgaged premises is, in fact, the owner of the tax lien for whom the plaintiff sues as *alter*ego, and that, unknown to the junior mortgagee, and without foundation in the complaint, the judgment of foreclosure directed a sale subject to a prior mortgage, and subject to a subsequent lease of fifty years made at the totally inadequate rental of ten dollars per month.

It was the duty of the mortgagor or those holding under him to pay taxes and assessments, they being a legal charge upon the estate, and not upon the mortgagee.

A mortgagor or his grantee cannot, by the payment of taxes and assessments, acquire in the mortgaged premises any right, title or interest hostile to the mortgagee.

On such motion to open a default, the court will not consider an allegation that the mortgagor gave money to the mortgagee with which to

*156pay the taxes and assessments for which the property was sold, nor a claim that the junior mortgage had an inequitable origin, these questions not being proper for determination on such motion.

Appeal by the defendant, Eagle Savings and Loan Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of November, 1914, denying its motion to open a default herein.

*Almet Reed Latson*[ *James Crooke McLeer*with him on the brief], for the appellant.

*Michael Furst [Theodore I. Schwartzman*with him on the brief], for the respondent.

Stapleton, J.:

The action is to foreclose a tax lien. The plaintiff alleges that her assignor purchased it from the city of New York. The owner of the estate in the lands assessed for taxation, mortgagees and tenants, are made parties defendant and were served with summons. The only allegations in the complaint relating to the defendants are: The defendants failed to pay interest on the tax lien within the statutory period; the plaintiff elected that the full amount of the tax lien become due and payable, and the defendants have or may have an interest or lien inferior and subordinate to the lien of the plaintiff in the real property described in the complaint.

Title *5*of chapter 17 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 490 of the Laws of 1908, authorizes the sale of the city’s lien for taxes, assessments and water rents, and prescribes, directly and by reference to other provisions of law, the procedure for the foreclosure of the tax lien. The defendant, appellant, is the junior mortgagee. It defaulted in pleading, and judgment of foreclosure and sale was entered against it. Then.it discovered that the owner of the estate in the mortgaged premises is the owner of the tax lien and that the plaintiff is the owner’s *alter ego.*It further discovered that without appellant’s asseiit and without foundation in the complaint, the judgment of foreclosure and sale directed a sale subject to a mortgage superior to the one held by it and subject to a lease, made subsequently to the commence*157ment of this action, for the term of fifty years at a monthly rental of ten dollars. It is evident that the senior mortgagee is appeased by the provision for its protection, and that the lease for an inordinate term at an absurd rental could have no other purpose than to weaken, if not destroy, the power of the appellant to protect itself upon the sale. At this step in the progress of the litigation the appellant made a motion to open its default in pleading, for leave to plead such of the facts as are pertinent, demanding judgment that the tax lien be extinguished, and for such equitable relief as would enable the appellant to discharge the lien of record. That motion was denied. From the order denying it this appeal is taken. It is our opinion that the order should be reversed and the motion granted. Equity has jurisdiction. The owner of a specific lien in the real property involved is qualified to ask the relief demanded, and that relief is essential to the protection of the property rights of the appellant. (Greater N. Y. Charter, *supra,*§ 1033, added by Laws of 1908, chap. 490; *People ex rel. Oakley*v. *Bleckwenn,*126 N. Y. 310, 316, 317.)

It is the duty of the mortgagor, or those holding under him the estate in the real property, to pay taxes and assessments and keep the mortgaged premises free from the paramount governmental lien. The taxes and assessments constitute a legal charge upon the estate and not upon the mortgage. The mortgagor or his grantee cannot, by payment of taxes and assessments, acquire in the mortgaged premises any right, title or interest hostile to the mortgagee. *(Oliphant*v. *Burns,*146 N. Y. 218; *Faure*v. *Winans,*Hopk. Ch. 283; *Medley*v. *Elliott,*62 Ill. 532, 535; *Ralston*v. *Hughes,*13 id. 469, 476; *Fuller*v. *Hodgdon,*25 Maine, 243, 249.) We cannot accept as' controlling upon this motion the plaintiff’s statement that the mortgagor gave the appellant money with which to pay the taxes and assessments for which the lien was sold, and we are not required to indicate what would be the legal effect of the proof of that fact upon a trial had upon appropriate pleadings between proper parties. We may not heed the claim of the plaintiff that the appellant’s mortgage had an inequitable origin. That question is not before the court in any manner fit for determination upon this appeal.

*158The order denying the motion to open defendant Eagle Savings and Loan Company’s default in pleading and to vacate the judgment of foreclosure and sale should be reversed, without costs, and the motion granted upon payment of plaintiff’s taxable disbursements to date, and upon the filing by appellant, at plaintiff’s election, of a stipulation to try the cause at the June Special Term.

Jenks, P. J., Thomas and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Order denying motion to open defendant Eagle Savings and Loan Company’s default in pleading and to vacate the judgment of foreclosure and sale reversed, without costs, and motion granted upon payment of plaintiff’s taxable disbursements to date, and upon the filing by appellant, at plaintiff’s election, of a stipulation to try the cause at the June Special Term.