Opinion
March, 1928.
Order modifying report and findings of referee and directing that the entire surplus moneys be awarded to respondent reversed upon the law, with costs, and motion to confirm referee's report granted. The decision of the referee, "That the provision contained in the mortgage for $61,500, held by the said defendant Droesch Realty Corporation, and above set forth herein, providing for a subordination of said mortgage to a first mortgage of $28,000 and to a second mortgage of $28,500, do [ sic] not entitle the said defendant Samuel B. Heiman to priority over said mortgage of $61,500 so held by the defendant Droesch Realty Corporation, as aforesaid," is supported by the evidence. Respondent did not have an interest in the mortgaged premises, either as a lienor or as an incumbrancer, at the time he loaned or advanced $5,000 to defendant Prospective Properties, Inc. That sum was used to make a payment on account of the principal of the second mortgage, so as to prevent foreclosure. Respondent, therefore, is not entitled to be subrogated to any part of the second mortgage so reduced by such payment. Lazansky, P.J., Rich, Young, Kapper and Seeger, JJ., concur.