Opinion
November 14, 1938.
Appeal from an order denying motion by appellant, holder of a second mortgage, for judgment for the amount of the mortgage indebtedness. An action to foreclose a second mortgage was commenced but was not prosecuted to judgment. More than two years afterward an action to foreclose the first mortgage was commenced and the real property was sold under a judgment obtained therein. The appellant's mortgage was thereby barred from the security of the real property. Respondents contend that the second mortgagee's failure to prosecute his action promptly to judgment and sale prevents the granting of his motion for judgment. Order reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. ( Weisel v. Hagdahl Realty Co., Inc., 241 App. Div. 314; Klein v. Kramer, 246 id. 760; rearg., 248 id. 617; Realty Associates Securities Corp. v. Hoblin, 247 id. 904.) Lazansky, P.J., Hagarty, Davis, Adel and Taylor, JJ., concur.