#### Margaret M. Smith, Plaintiff, *v.*Maria L. Jarvis et al., Defendants.

(Supreme Court, New York Special Term,

February, 1899.)

Foreclosure — Remedies of junior mortgagee where a sale has been postponed for six years and the debt decreased.

Where a judgment in foreclosure, entered by default in 1893 and subsequently assigned to third parties but never enforced by a sale, has in the meantime been reduced in amount by about one-third, the court will not, at the instance of the executors of a deceased junior mortgagee, who had been made a party, permit them to intervene and order a sale for the amount still unpaid as, in view of the fact that the executors have a right to redeem or to foreclose their junior mortgage, such a course is unnecessary and would be too onerous for the owner of the equity of redemption and for the assignees of the judgment.

The executors will, howeier, be allowed to intervene in the action in so far as may be necessary to entitle them to notice of sale and of all subsequent proceedings.

Motion by Prank S. Bond and Carolina D. Seward, executors under the -last will and testament of the defendant Clarence A. Seward, deceased, for an order substituting them in place of the latter as parties to this action and to all further proceedings herein; ascertaining the amount due under the judgment of foreclosure and sale heretofore entered herein, and the person or persons to whom such amount is payable; and directing the referee appointed in said judgment to forthwith sell the mortgaged premises, and out of the proceeds of such sale to pay the balance due under said judgment to such person or persons as the court may determine are thereto entitled.

Seward, Guthrie & Steele, for motion.

Henry Hoyt, opposed.

*508Bebkmae, J.

This action was brought for the foreclosure of a mortgage. The defendant Jarvis was the owner of the equity of redemption, and the defendant Seward was made a party as a junior mortgagee. On the 14th day of April, 1893, judgment of foreclosure and sale was rendered on default. Ho sale has ever been had under it, and it is now held and owned by George W. Cotterill and Susanna J. Moore by assignment. Payments have been made, from time to time, upon the amount adjudged to be due on account of the mortgage debt, which has been thus considerably reduced. The defendant Seward died on the 24th day of July, 1897, and his executors now move for an order substituting them as parties defendant in his place; ascertaining the amount now due on the judgment, and directing the referee appointed to sell the mortgaged premises to proceed with the execution of said judgment. The motion is resisted by Mrs. Moore.

Although the question of power in the court to grant the relief asked for was raised and discussed on the briefs, I deem it unnecessary to enter at length upon the subject. I shall assume, as I believe it to be, that the court has the right, in a proper case, to direct the referee under such a judgment to proceed with the sale, on motion of any defendant and against the wishes of the plaintiff. Kelly v. Israel, 11 Paige, 147. The exercise of the power, however, rests in the sound discretion of the court, and the moving party must show that in some substantial way his rights or interests would be jeopardized by delay.

Hothing of the kind, however, has been shown here. Indeed the evidence seems to be all the other way. "While the judgment has 'remained unenforced, it has apparently been reduced in amount by about one-third, a most distinct advantage to the petitioners, whose security has been thus proportionately increased. The only ground on which their motion rests is that it would be more convenient to them to have their rights as holders of the junior mortgage litigated in surplus money proceedings than in an action to foreclose their mortgage, which they have an undoubted right to institute. I fail to perceive any great advantage in this. Some little time might, perhaps, be saved; but if there is to be any litigation over the mortgage, the time consumed in the trial would be as great in one case as in the other.

But whatever it may amount to, the advantage to the petitioners is quite offset by the disadvantage the holders of the judgment and the owner of the equity of redemption would suffer by reason of the *509immediate enforcement of the judgment. These are considerations which should influence the action of the court on such an application, where, as here, the proofs fail to show any impairment of the interests of the moving party flowing from continued delay. The remedies of the petitioners are very plain. They have, of course, the right to redeem, which can only be cut off by an actual sale under the judgment. If they wish to do so, the court would undoubtedly make an order requiring the owners of the judgment to assign the same to them upon payment of whatever may be due thereon. They can, also, as has been said, bring an action for the foreclosure of the junior mortgage, and upon obtaining judgment therein, cause the property to be sold subject to the prior judgment.

Under the circumstances thus briefly considered, I do not think that they should prevail on this branch of the motion. The petitioners, however, should be allowed to intervene in the action so far as may be necessary to entitle them to notice of sale and of all subsequent proceedings therein. The order to be entered on the decision of this motion must so provide, and authorize an appearance by attorney for that purpose. The ascertainment of the amount due on the judgment which has been asked for is at present unnecessary, in view of the disposition which has been made of the rest of the motion. It is time enough to have this done if it is found to be necessary when notice of an intended sale is hereafter given.

¡Notice order for settlement in accordance with the above views.

Ordered accordingly.