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WHITESTONE SAVINGS AND LOAN ASSOCIATION, Respondent, v. AUBREY MORING et al., Defendants, and DORIS FUTTERMAN, Appellant. (Action No. 1.) DORIS FUTTERMAN, Appellant,

In this consolidated action for the foreclosure of two mortgages on the same real property, the plaintiff in each action claims to hold a first mortgage. Plaintiff in action No. 1, hereinafter called "Whitestone", is the mortgagee under a mortgage, the proceeds of which were used to satisfy two prior mortgages, a first and a second. Plaintiff in action No. 2, Doris Futterman, is the holder by assignment of a mortgage which, at the time of its execution and delivery, was a third mortgage, being by its express terms junior in lien to the two mortgages which were satisfied as aforesaid. No facts are given to show the consideration she paid or the circumstances under which said third mortgage was assigned to her. She claims a senior lien because her mortgage was recorded before Whitestone's. Whitestone claims priority on the contention that it is entitled to be subrogated to the rights of the mortgagees whose mortgages were satisfied with money furnished by it, as aforesaid. Doris Futterman appeals from an order granting Whitestone's motion for summary judgment in its favor which, among other things, dismisses the complaint in action No. 2. Order modified by striking therefrom the first decretal paragraph and by inserting in the second decretal paragraph, after the word "dismissed", the words "as against Whitestone". As so modified, order unanimously affirmed, without costs. Appellant is entitled to proceed with her action to foreclose her mortgage, subject to Whitestone's superior lien for the amounts of the aforesaid two mortgages at the time they were paid off, with appropriate interest.

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WHITESTONE SAVINGS AND LOAN ASSOCIATION v. MORING
(Oct 31, 1955)