#### David Mayer, Plaintiff, *v.*Hattie Margolies et al., Defendants.

(Supreme Court, Queens Special Term,

April, 1905.)

Mortgage.— Foreclosure — Easement acquired prior to mortgage not cut off.

An alleged interest in mortgaged premises ■which arose under deeds executed long prior to a mortgage thereon, cannot be determined in an action to foreclose the mortgage and as to the owner of such interest the complaint must be dismissed.

That an action to restrain an alleged violation of such easement and the filing of a notice of pendency of such action occurred sub*25sequently to the execution of the mortgage, sought to he foreclosed, does not make the easement itself either subject or subordinate to the mortgage.

Action to foreclose a mortgage.

Jay C. Guggenheimer, for plaintiff.

John J. Lenehan, for defendant Silberman.

Burr, J.

It was conceded upon the trial that if the defendant, Samuel J. Silberman, had any interest in the mortgaged premises, it was in nature of an eásement in favor of other premises owned by him to which the mortgaged premises were servient. If any such easement exists it arose under deeds executed long prior to the execution of the mortgage which is here sought to be foreclosed. That being so, whatever right such defendant has is prior and paramount to that of the plaintiff. Such a right cannot be determined in an action to foreclose a mortgage. Corning v. Smith, 6 N. Y. 82. It is quite possible that if the defendant Silberman had not appeared in the action and had allowed the judgment to be entered against him by default, such judgment would not have barred and foreclosed him of such paramount right. Lewis v. Smith, 9 N. Y. 502; Frost v. Koon, 30 id. 428; Merchants’ Bank v. Thomson, 55 id. *7.*But he did not choose to do this. On the contrary he not only denied the general allegation of the complaint that his interest in the mortgaged premises was subject and subordinate to the mortgage, but in his answer alleged facts showing that his claim or interest therein accrued long prior thereto. Under such circumstances, the bill should be dismissed unless the plaintiff is prepared to prove that such claim in fact arose subsequent to the mortgage. Corning v. Smith, *supra.*The plaintiff has not attempted to do this. The contention of the plaintiff, that, because, subsequently to the making of the mortgage, the defendant Silberman began an action to restrain two of the other defendants from violating his rights by way of easement in the mortgaged premises, and filed a notice of the pendency of *26the said action, therefore Silberman’s rights or interest in the mortgaged premises accrued subsequently to the said mortgage, is without foundation. . The filing of the notice of the pendency of the action did not create Silberman’s claim to, or interest in, the mortgaged premises. If any such claim or interest exists, it arose under deeds executed long prior to the mortgage. The fact that the violation of Silberman’s right in the premises, and the commencement of the action to restrain such violation, and the filing of a notice of the pendency of such action, all occurred subsequently to the mortgage did not make the right itself either subject or subordinate to the mortgage. As well might one claim, -if A. executed a mortgage upon premises which really belonged to B., and B. subsequently commenced an action of ejectment against A. and filed a notice of pendency thereof, that B. was a proper party defendant to an action to foreclose said mortgage because of filing such *Us pendens.*It may be that the defendant Silberman has not any right or easement at all in the mortgaged premises. Because such right or easement if it does exist is paramount to that of the plaintiff’s by reason of his mortgage I cannot determine that question in this action.

There must be judgment for the plaintiff for the foreclosure of his mortgage in the usual form as to all the defendants except the defendant Silberman. As to him the complaint is dismissed, with costs.

Judgment accordingly.