#### Flora L. Vose, Plaintiff, *v.*Joseph C. Conkling, Individually and as Administrator, etc., et al., Defendants.

(Supreme Court, New York Special Term,

December, 1911.)

Equity — Nature and grounds of jurisdiction — Existence of adequate remedy at law.

Subrogation — Payment at request of debtor. ’ •

One who-at the request of another advances money to redeem or pay off a mortgage in which the latter is interested is entitled to be subrogated to the security.

The entire estate of the testatrix who died in 1893 consisted of certain real estate and two leaseholds one of which she had mortgaged for $2,500. Her husband who was her executor and *14trustee died in 1895 without having settled the estate; her daughter who became administratrix with the will annexed died in 1909 without settling the estate; and in 1910 defendant was appointed administrator with the will annexed but has taken no steps to settle the estate. In 1902 the mortgagee pressed for payment and the defendant administrator borrowed from plaintiff and her sister, since deceased, moneys which were applied to taking up the mortgage ¿nd paying taxes and the expenses of the new loan. Plaintiff and her sister upon the advice of counsel accepted as security mortgages on the leaseholds. Subsequently the plaintiff became the sole owner of both mortgages and upon foreclosure of them collected less than $300 and .entered deficiency judgments against the defendant administrator. In an action for subrogation in which plaintiff claimed the right to follow the real estate left by the said testatrix and claimed by the defendants as her heirs, held, that plaintiff had exhausted her legal remedy and was entitled to follow the real estate, and the fact that the defendants had failed to settle the estate of decedent and to have a substituted trustee appointed could not defeat or delay plaintiff’s claim.

Demurrer to complaint.

Stuart "Gv, G'ibboney, for plaintiff.

Alfred H. Cumbers, for defendants.

Gut, J.

Defendants demur to the complaint herein. Tbe action, is for subrogation. The complaint alleges that the decedent, Ann M. Miller, died in 1893 seized in fee of certain real estate as well as of two leaseholds; that during her lifetime she mortgaged one leasehold to secure the payment of the sum of $2,500; that by her will her husband, John-Miller, was appointed her executor and trustee; that he died in 1895 without having settled the estate; that thereupon Mrs. Miller’s daughter, Maria L. Conkling, became her administratrix with the will annexed and died in 1909, also without settling the estate; whereupon on June 24, 1910, letters of administration with the will-annexed were issued to the defendant Joseph C. Conkling, who also has taken no steps to settle the estate. In 1902 the mortgagee pressed the estate for payment of the $2,500 mortgage, whereupon the then surviving -administratrix with the will annexed ap*15plied to and obtained from the plaintiff and her deceased sister a loan of $3,000, which was necessarily applied to the taking up of the called mortgage, also to the payment of taxes .and expenses of closing the new loan; that the decedent’s administratrix with the will annexed offered to the plaintiff and her sister two $1,500 mortgages on the leaseholds ; that plaintiff and her sister, being advised by counsel that said mortgages were good security, accepted them, and thereupon agreed to and did loan the $3,000 to the administratrix with the will annexed for the benefit of the estate. Thereafter plaintiff, becoming the sole holder of the two $1,500 mortgages, foreclosed both, collecting only $271.51 thereon, and on July 13, 1911, entered deficiency judgments for the balance against the defendant Joseph Conkling, as the decedent’s administrator, with the will annexed. Decedent left no personal property, and plaintiff claims the right to follow her real estate in equity, which real estate is claimed by the defendants as the decedent’s heirs. The court cannot assume upon demurrer that the allegations of the complaint are untrue, or that plaintiff has changed her mind, is merely a volunteer, or is endeavoring to avoid the results of an unsuccessful speculation. The plaintiff’s' legal remedy is exhausted. One who, at the request of another, advances money to redeem or pay off a security in which the latter is interested, is entitled to be subrogated to' the security. Gans v. Thieme, 93 N. Y. 225, 232; Morehouse v. Brooklyn Heights R. R. Co., 185 id. 521, 524; Pease v. Egan, 131 id. 262, 272-3; Arnold v. Green, 116 id. 566, 571. She may follow the property, and the fact that the defendants have failed to settle the decedent’s estate, also to have a substituted trustee appointed,' should not defeat or delay her claim. Bergmann v. Lord, 194 N. Y. 70, 77. The presumption is that the county clerk did his duty and docketed the deficiency judgments (Manhattan Co. v. Laimbeer, 108 N. Y. 578, 581); if not, the plaintiff’s equities to a subrogation were not affected. Demurrer overruled, with costs, with leave to answer within three days upon payment of costs.

Demurrer overruled. .