Bernhardt v. Lymburner (85 N.Y. 172, 1881)

Andrews, J.

The question in this case arises between subsequent mortgagees of different parts of the premises embraced in the plaintiff’s mortgage, upon an exception of the defendant Howard, to the direction in the judgment that the part of the premises covered by his mortgage, should be first sold.

The plaintiff’s mortgage is upon a lot on the west side of Main street, in the city of Buffalo, one hundred feet front, and one hundred and thirty-two feet in depth. It was executed by Harriet C. Lymburner, the owner of the premises, September 1, 1871, and was recorded September 2, 1871, and there is due thereon $5,000, and interest from March 1, 1878. The defendants, Hamilton M. Lymburner and George 0. Torrey, as executors, hold a second mortgage, dated October 1, 1872, also executed by Harriet M. Lymburner, which originally covered the whole lot. On the 24th of' March, 1873, the executors, upon the request of the mortgagor, released the northerly forty feet of the lot from the lien of their mortgage, so that, from that time, their mortgage was a lien only upon the southerly sixty feet; and there is due thereon the sum of $6,300, and interest from June 20, 1877. The defendant Ethan H. Howard, is the assignee of a mortgage on thé northerly forty feet of the lot, executed by Harriet 0. Lymburner, March 24,1873, on which is unpaid $5,462, and interest from March 24," 1878 ; and this mortgage is accompanied by the bond of the mortgagor, Mrs. Lymburner, the mortgagor, died seized of the whole lot June, 1878,' and" by her will devised the sixty feet and the forty feet, by separate devises, in trust for different beneficiaries named.

It was admitted on the trial, that the value'of the sixty feet covered by the mortgage to Hamiltom M. Lymburner and George C..Torrey as executors, is $12,000, and that the value