Opinion
December, 1934.
Present — Young, Hagarty, Carswell, Scudder and Tompkins, JJ.
Order granting plaintiffs' motion for summary judgment and denying motion of the appealing defendants for summary judgment, and judgment in favor of the plaintiffs entered thereon, in an action to recover taxes paid on property which the defendants were obligated to pay, unanimously affirmed, with ten dollars costs and disbursements. The second mortgagee was expressly obligated to pay these taxes as a consequence of its engagements with the owner of the fee and the mortgagor, in the event it entered into possession of the premises and collected rents thereof. The plaintiffs, in order to prevent a forfeiture, paid these taxes which the second mortgagee was thus obligated to pay, which forfeiture was threatened by the owner of the fee. In so doing the plaintiffs, on behalf of the first mortgagee, became subrogated to the rights of the owner of the fee as against the second mortgagee.