#### Mary T. Clark, Plaintiff, *v.*Vilas National Bank of Plattsburgh, Impleaded, Etc., et al., Defendants. Mary T. Clark, Plaintiff, *v.*Vilas National Bank of Plattsburgh, Impleaded, Etc., et al., Defendants.

(No. 1.)

(No. 2.)

(Supreme Court, Ulster Special Term,

September, 1898.)

Foreclosure — Refusal to restrain a sale at the instance of another creditor, where there was no fraud in the judgment itself.

A mortgagee, having judgments of foreclosure upon property subject to two prior past due mortgages, should, in the absence of fraud in the judgments be allowed to sell, and the court will not restrain the sale at the instance of another judgment creditor, which has procured the appointment of a receiver of the personal property of the judgment debtor and mortgagor and which desires that its real and personal property be sold at the same time, and after the conclusion of an accounting of .the debtor, ordered to investigate transfers made by the debtor to the plaintiff.

Application for an order staying a sale in mortgage foreclosure.

Harris *&*Rudd, for motion.

Patterson, Bulkeley & Van Kirk, opposed.

Clearwater, J.

The first action is to foreclose a mortgage for $10,000, dated the 11th day of July, 1887, upon which the whole amount, with interest from July 11, 1896, is due.

The second, is to foreclose a mortgage for $1,500, dated the 1st of July, 1872, upon -which the whole amount, with interest from July 1, 1895, is due, less the sum of $10 paid on account of interest.

The property covered by these mortgages, is subject to two prior mortgages, one for $20,000, and one for $7,500, the principal of both being past due, and the interest for some time due and unpaid. The plaintiff has a decree of foreclosure in both actions with the usual direction that the property be sold under the direction of a referee, and the mortgage debt paid from the proceeds of the sale, which has been advertised. The defendant, the Vilas National Bank of Plattsburgh has a judgment- against- the owner of the *622equity of redemption, its claim being upwards of $6,000. A receiver of the personal property of the judgment debtor ,has been appointed, and an accounting has been ordered, and is now proceeding before a referee relative to the transfer of certain personal property by the judgment debtor to the- plaintiff. ' .

An order granted at the Albany Special Term of October, 1897, staying all proceedings of the plaintiff, was reversed by the Appellate Division in December last. Clark v. Vilas National Bank, 22 App. Div. 605.

The court is now asked to stay the sale upon the ground that it would be best for all the parties interested to have the accounting completed, and the real and personal property sold together. - ■

Entirely aside from the question whether the decision of the-Appellate Division is an adjudication upon the matters involved in this motion, I da not think the bank is entitled to the order. While the court has large discretionary power, it should be exercised judicially,' and not arbitrarily, and a mortgagee having a specific lien untainted with fraud, has, as a rule, the right to enforce it regardless of the effect upon subsequent lienors or unsecured creditors. .It is only where there is fraud in the procurement or concoction of the judgment itself, or where the unsuccessful party has been prevented by some cause unmixed with fault or negligence of his own from availing himself of a defense, or something happens after it is granted, making it improper' or unjust to enforce it, that the court shordd stay the execution of its own judgment. A- direction to sell the property is more than an incident of a decree of foreclosure, it is an essential and vital portion of the-decree itself. Hbr am I able to see that the plaintiff’s action in pressing the sale is inequitable or unjust. The fact that the personal property is in the hands of a receiver, is not a sufficient reason for staying the sale where the court itself has adjudged-the validity of mortgages antedating the receiver’s title and directed their satisfaction out of the property which they cover. Ro facts subsequent to the rendition of the judgments of foreclosure are disclosed showing a sufficient reason for the intervention of the court; nor is it at all clear that if the order asked for was granted, the plaintiff’s mortgages would he fully satisfied and the interest of the other persons interested in the property substantially advanced.

The motion is denied, with $10 costs.