McRae v. Hummel

Order denying plaintiff’s motion to strike out the answer and for summary judgment under rules 113 and 114 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The bond in suit was given simultaneously with the execution of a mortgage as a first hen on certain real property. Defendant defaulted in the payment of taxes and a sale and foreclosure of the tax hen was had, resulting in the extinguishment of the hen of the first mortgage. The property was bought in by the holder of the first mortgage, she being free so to do (Sautter v. Frick, 229 App. Div. 345; *874affd., 256 N. Y. 535) without impairing or lessening her rights under the bond upon which the defendant was obligated to her and the lien of which was extinguished by the sale based on a default of the defendant which gave rise to the existence of a lien prior to that of the first mortgage. Her rights then were measured by the doctrine of Weisel v. Hagdahl Realty Co., Inc. (241 App. Div. 314). The doctrine of Klein v. Kramer (246 App. Div. 760), upon which defendant relies, was retracted. (Realty Associates Securities Corporation v. Hoblin, 247 App. Div. 904; Klein v. Kramer, 248 id. 617.) Any other view would imperil the validity of section 1083-b of the Civil Practice Act. Lazansky, P. J., Carswell, Davis, Johnston and Close, JJ., concur.