Lazansky, P.J., Carswell, Tompkins and Johnston, JJ., concur;
Davis, J., concurs for reversal and votes for the direction of judgment for the plaintiff, with a memorandum as follows:
The plaintiff was not required to incur the expense of taking judgment and having a foreclosure sale on his small second mortgage when there was impending foreclosure and sale under a first mortgage of upwards of $13,000. That he was justified in taking this prudent course is indicated when the property was sold under the first mortgage for $3,000, thereby leaving a large deficiency on the first mortgage and entirely wiping out the security of plaintiff's mortgage, and leaving the debt unpaid and unsecured. ( Weisel v. Hagdahl Realty Co., Inc., 241 App. Div. 314.) Obviously, it will be an idle and useless proceeding to require plaintiff to proceed under section 1083-a of the Civil Practice Act, for the purpose of showing the value of this property at the time he might have entered judgment a few months earlier, in view of the then existing first mortgage of $13,500, and particularly in view of the fact that the property has since been sold for $3,000.