April 3, 1939.
Present — Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ. [ 168 Misc. 738.]
Plaintiff assigned his $1,500 bank account to the defendant until a $10,500 mortgage should be reduced to $9,000. More than three years after the assignment the mortgage had not been reduced in any amount, and interest thereon and taxes on the mortgaged premises were unpaid. Defendant, holder of the mortgage, commenced a foreclosure action, deducted $1,500 from the amount due on the mortgage indebtedness, and obtained a judgment of foreclosure and sale based on a principal mortgage indebtedness of $9,000. The mortgaged property was sold to defendant for $5,000; and defendant made no application for a deficiency judgment. Plaintiff brought this action to recover the moneys in the assigned bank account, contending that the defendant had no right to the money in the account until defendant had first applied for a deficiency judgment. After trial by the court without a jury, judgment was rendered on the merits in favor of defendant. Judgment unanimously affirmed, with costs. No opinion.