#### William H. Magilton *et al.,*Executors, etc., of Osman Hollister, Deceased, App’lts, *v.*Mary A. Holbert *et al.,*Resp’ts.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

Mortgage—When second mortgagee may “tack” interest paid on FIRST MORTGAGE.

Where a second mortgagee pays the interest of the first mortgage in *97order to protect Ms own security, he may " tack ” the amount thus paid to his own mortgage, whenever he forecloses, if there be no intervening equity. So also as to any costs of the foreclosure of the first mortgage necessarily paid by him. But he is not entitled to have an assignment of any share of the fist mortgage,

Appeal by plaintiffs from part of an order made in a foreclosure action at special term. April 1, 1886, the defendant Mary A. executed a. bond and mortgage to the plaintiffs as executors, etc., to secure the payment to the plaintiffs of $5,000, five years from date, with interest at five per cent, semi-annually, payable on the first of April and of October of each year.

After the execution of the plaintiff’s mortgage, and May ■8, 1888, the defendant Margaret Brown became the owner of the mortgaged premises, and oh that day executed the two mortgages junior to the plaintiffs—one to defendant Lampman for about $1,800, and the other to defendant Werner for $600. Afterwards, and December 6, 1888, the defendants having failed to pay the interest, $Í25, which became due on October 1, 1888, the plaintiffs commenced this action to foreclose their mortgage for the non-payment of such interest. After repeated extensions of time by the plaintiffs’ attorneys to the defendants, the defendants Lampman and Werner moved at special term for an order directing the plaintiffs to assign over their bond and mortgage to them, defendants Lampman and Werner (the principal of which, $5,000, would not be due in over two years).

This the court denied.

But as a part of the order on that motion the court “ordered and directed that the plaintiffs in this action execute an assignment of so much or such amount of their said mortgage and the accompanying bond to the defendants Lampman and Werner, as they seek in this action to enforce or collect,” etc. “And that the plaintiffs or their attorneys sign a consent, substituting and subrogating said Lampman and Werner as plaintiffs in said action, to the end that they may prosecute the same if they so elect, and that the plaintiff be forever enjoined,” etc., “from prosecuting this action.”

From this part of that order the plaintiffs appeal.

*John A. Griswold,*for app’lts; *Jacob I. Warner,*for resp’ts.

Peb Cubiam.

When a second mortgagee pays the interest of the first mortgage in order to protect his own security, we suppose he may “tack” the amount thus paid to his own mortgage, whenever he forecloses, if there be no intervening equity. So probably he may do as to any costs of *98the foreclosure of the first mortgage necessarily paid by him.

But he is not entitled to have an assignment of any share of the first mortgage. Because, if he were thus to become an owner in common with the first mortgagee, the security, of the first mortgagee would be diminished.

The rights of the second mortgagee will be sufficiently protected whenever he shall be compelled to foreclose his own mortgage, by proof that he has necessarily paid these moneys to protect his security.

The part of the order appealed from reversed, with ten dollars costs and printing disbursements.