#### Benjamin Abert, Respondent, v. Charles Kornfeld, Respondent, Impleaded with Cosmos Realty Company and Others, Defendants, and John Zeto, Appellant.

First Department,

November 13, 1908.

Mortgage — simultaneous instruments, one collateral to other — extent of each as security.

Where the owner of a leasehold and unimproved lands adjoining executes and delivers simultaneously two mortgages, the one on the leasehold containing no reference to the other, and the mortgage on the vacant land expressly stating that it is collateral not only to the bond but collateral to the leasehold mortgage, the latter is the primary security for the full amount due.

When the mortgage expressly made collateral to the other provides that any sum paid on that mortgage shall be credited on the collateral mortgage, and that on the payment of a certain sum on either mortgage with accrued interest upon the entire principal sum due at the date of said payment, the mortgagee shall cancel the collateral mortgage, the latter mortgage is not intended as security for the entire debt, but only as security for the amount required to be paid to obtain its cancellation.

*548Appeal by the defendant, John Zeto, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of May, 1908, upon the decision of the court, rendered after a trial at' the New York Special Term, confirming the report of a referee and directing the sale in foreclosure of ■ the premises described in the complaint herein.

*Julius J.*Michael, for the appellant.

*Edward Herrmann,*for the plaintiff, respondent.

*Hyman Cohen,*for the respondent Kornfeld.

Laughlin, J.:

.. The action-was brought for the foreclosure of two mortgages on real estate given by defendant Kornfeld to the plaintiff .to secure the payment to plaintiff of the sum of $4,000 evidenced by a bond of even date with the mortgages. One parcel was an improved leasehold interest and the other was vacant. The appellant under'a contract with the owner of the equity of redemption has made valuable improvements on the vacant land for which he has not been paid and he has filed a mechanic’s lien therefor.

■ The question presented by the appeal is whether the premises so improved by appellant were security for the entire amount. The trial court decided that the mortgage on the vacant land was collateral to the other and directed the sale of the leasehold first, but also decided that both mortgages were, security for the entire amount.

The mortgages bear the same date and they were executed and delivered simultaneously. The mortgage on the leasehold was unquestionably intended as security for the full amount and the trial court correctly decided that it was the primary security, for it contains no reference to the other mortgage, while the mortgage on the vacant land is declared in express terms tobe not only collateral to the bond, but collateral'to the other mortgage.

The mortgage on the vacant land, after reciting the indebtedness and the substance of the bond and that the mortgage was given “ for the better securing the payment of the said sum of money men*549tioned in the condition' of the said bond or obligation with interest,” contains the following provisions, to wit: *“*It is understood and agreed between the said parties hereto that this mortgage covering said premises hereinbefore described is given as further additional and collateral security of and for a certain mortgage made this first day of February, 1906, by the party of the first part unto the said party of the second part, and covering a leasehold interest of the said party of the first part in and to the certain premises 2365 Second Avenue in the City of hiew York, Borough of Manhattan. And it is understood and agreed that any and all sums paid on the said last mentioned mortgage and any and all interest that may or shall have been paid' upon the said last mentioned mortgage shall be credited to and be applied to the payment of this mortgage, and it is further understood and agreed that upon the payment by the said party of the first part unto the holder or owner of either 'the within mortgage or the said mortgage on the leasehold premises of the sum of one thousand ($1,000) dollars together with any accrued interest on the entire principal sum that may remain due upon the date of the payment of said sum of one thousand ($1,000) dollars, then and in that event the said party of the second part or the holder of the within mortgage shall and will cancel and discharge the within mortgage, together with the appurtenances and all the estate and rights of the mortgagor in and to said premises, and also all personal property appurtenant to the building erected on said premises and now contained therein or which may hereafter be contained therein.”

It is urged by respondents that this mortgage also was intended as security for the entire debt and that a *personal*privilege was given to the mortgagor of having the premises released on payment of a less amount as therein provided, which privilege could only be exercised before foreclosure and could neither be exercised by nor inure to the benefit of his grantee or lienor. This argument is not convincing.

The reasonable construction of the provisions'quoted is, we think, that the mortgage was only intended as security for the amount required to be paid to obtain its cancellation and discharge.

It follows that the judgment should be modified by limiting the application of the proceeds of the sale of the premises covered by *550the mortgage containing the clause quoted to the sum of' $1,000 and accrued interest on the entire principal, with costs to appellant.

Patterson, P; J., McLaughlin, Houghton and Scott, JJ., concurred.

Judgment modified as directed in opinion, with costs to appellant. Settle order on notice.