Philadelphia, Reading & New England Railroad v. Bowman (23 A.D. 170, 1897)

Cullen, J.:

The premises, the subject of condemnation in this proceeding, ' are the right of way occupied by appellant’s railroad across the farm of one William H. Tanner. The predecessor of the appellant, also a railroad corporation, entered into possession of the premises under a deed from said Tanner and constructed its railroad thereon. At the time of the conveyance by Tanner, his farm was subject to a mortgage. No release of this mortgage was obtained or any proceedings instituted, to condemn the right of the mortgagee. In 1895 an action was brought to foreclose this mortgage, to which the appellant was made a party. The appellant answered in that action, claiming that the remainder of the farm should be first sold in satisfaction of the mortgage debt. Under the decree in foreclosure the two plots, i.