Opinion
November, 1935.
The plaintiff was the owner of a second mortgage on property in Schenectady. The first mortgage was foreclosed, plaintiff herein having been made a party to said action, the property was sold and failed to bring the amount of the first mortgage. Plaintiff brought an action on the bond given in connection with the second mortgage. The defendants interposed an answer, alleging that the bond on which plaintiff bases his action was accompanied by a mortgage executed simultaneously with said bond, and that the value of the mortgaged property, less the other prior incumbrances and liens, exceeds the amount due on the bond. This is not a defense after the foreclosure of the first mortgage cutting off the rights of the plaintiff herein. The action is not governed by section 1083-b of the Civil Practice Act. The order appealed from should be reversed. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. (See Johnson v. Meyer, 268 N.Y. 701.) Hill, P.J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.