Opinion
February 1, 1943.
Plaintiff, being the holder of first and second mortgages on premises owned by respondent Clement, foreclosed the second mortgage. The premises were bid in at the foreclosure resale by respondent's niece for an amount less than that stated to be due in the amended judgment, and the referee's deed has been delivered to her. It is not denied that since such conveyance by the referee the respondent has exercised dominion of ownership over the property. Plaintiff moved for an order confirming the report of sale, which has been granted, and for leave to enter a deficiency judgment against respondent in the amount reported due without regard to the value of the property, or reattaching the second mortgage lien in said amount on the ground that the respondent was estopped from claiming the benefits of section 1083-a of the Civil Practice Act. Plaintiff appeals from so much of the order as denies it the relief requested. Order, insofar as appealed from, affirmed, with ten dollars costs and disbursements. The failure of the plaintiff to obtain the property on its own foreclosure sale does not estop the respondent from asserting the provision of section 1083-a of the Civil Practice Act against plaintiff's claim for an absolute deficiency judgment. That section requires only an actual sale of the property in the foreclosure action and its application in the present case will not constitute a withdrawal of all remedies, for the plaintiff has pursued the remedy of foreclosure and its second mortgage lien has been transferred from the property to the purchase price received at the foreclosure sale. Dorff v. Bornstein ( 277 N.Y. 236) does not sustain the plaintiff's contention that the second mortgage lien should reattach to the property. In any event said lien cannot reattach where the plaintiff has confirmed the sale and where the court has no jurisdiction over the purchaser at the foreclosure sale. Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.