Opinion
May Term, 1898.
Motion for reargument denied, with ten dollars costs and disbursements.
The respondents misconceive the point of our former decision. (See 26 App. Div. 532.) It was essential and necessary that the mortgagee should continue his action for the foreclosure of the mortgage for the purpose of establishing the amount due thereunder, and the amount which the mortgagee thus established was the amount of the lien due at the time of the sale of the premises under the foreclosure of the first mortgage, and became immediately, when established, transferred as a lien upon the surplus moneys. The mortgage being then a lien and the foreclosure being necessary to establish that lien and requiring the judgment of the court in its establishment, the court was authorized in pronouncing judgment to award to the successful party costs, and they are an incident of the judgment thus awarded and become a part thereof ( King v. Poole, 36 Barb. 242), and are to be treated as a part of the lien secured by the mortgage at the time when the sale creating the surplus was had. There is nothing in any of the cases cited by the respondents which conflicts with this view. We concede that the lien must exist at the time of the sale. The mortgage lien did exist for such sum as should be thereafter established, with costs as might be awarded, and such sums are to be treated as the sum constituting the lien at the time when the sale was had. The motion for a reargument is denied, with ten dollars costs and disbursements. All concurred