#### Louis Gottlieb, Respondent, *v.*The City of New York, Appellant, Impleaded with Patrick McDonald and Others.

Second Department,

October 16, 1908.

Mortgage — equitable assignment by mortgagee under form of quitclaim deed — pleading — amendment at trial.

"Where a municipality holding only a mortgage on lands assumes to convey the same by an instrument in the form of a quitclaim deed, it operates as an assignment of the mortgage.

Hence, where the grantor subsequently forecloses the mortgage and buys in the property, it holds the same as trustee for the grantee, and the latter is entitled to a decree adjudging Mm to be the owner and requiring the city to convey. Although the original action by the grantee was in ejectment, it. is proper to allow an amendment at trial so as to change the suit to one in equity to compel a conveyance, both sides having noticed it for trial at Special Term.

Appeal by the defendant, The City of New York, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of April, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the. appellant to execute and . deliver to the plaintiff a deed of certain premises.

The Town of Gravesend, by its Trustees of Common Lands, conveyed the land in question to the plaintiff in 1885. The town by the said trustees had already conveyed the same to another in 1884, and taken back a mortgage for part of the purchase money, which it held at the time of the conveyance to the plaintiff. In 1893 the said mortgage was foreclosed by the town by action and the town became the purchaser at the sale. This plaintiff was not. made a party to such foreclosure.

*149The conveyance to the plaintiff was “ all of the right, title, interest, ownership and estate ” of the town, and there were no covenants against encumbrances, of seizen, warranty or further assurance.

This was originally an action in ejectment against the City of New York, the successor of the- said town, which is in possession under the conveyance to it under the said foreclosure. On the trial (both sides having noticed it for trial at the Special Term) the complaint was amended to make it a suit in equity to have the plaintiff' adjudged owner and require the- city to convey to him.

*James D. Bell [Jerome W. Coombs*and *Francis K. Pendleton*with him on the brief], for the appellant.

*George H. Taylor, Jr. [Louis J. Somerville*with him on the brief], for the respondent.

Gaynor, J.:

When the town conveyed to the plaintiff it did not own the land, but only a mortgage thereon. The deed of conveyance was without covenants, but it operated to assign the mortgage to the plaintiff, and ■ therefore the foreclosure of the mortgage by the City of New York (the successor of the town) and the purchase by the said city on the foreclosure for the amount due on the mortgage, must be deemed to have been done as trustee for the plaintiff. There seems to be an absence of precise authority in this state that a deed of quit claim, or of right, title and interest, by a mortgagee of the land, at least assigns the mortgage. If the mortgagee should foreclose, and the foreclosure should be- ineffectual to transfer title to the purchaser, it would transfer the mortgage to him *(Robinson*v. *Ryan,*25 N. Y. 320). There seems to be no reason why the same result should not flow from a deed of conveyance of quit claim or without, covenants by the mortgagee, instead of resorting to a foreclosure. That has been held elsewhere *(Stark*v. *Boynton,*167 Mass. 443).

The judgment, and also the order permitting the amendment of the complaint,, should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.