ARTICLE FOURTH.

Action to Foreclose a Mortgage.

SEC. 1626. Final judgment; what to contain.

1627. Person liable for mortgage debt may be made defendant, etc. 1628. Other actions for mortgage debt, when prohibited.

1629. Complaint to state whether such action brought.

1630. If judgment rendered therein, execution must be returned. 1631. Notice of pendency of action to be filed.

1632. Effect of conveyance upon sale.

1633. Disposition of surplus.

1634. When complaint to be dismissed on payment of sum due.
1635. Payment after judgment; when proceedings to be stayed.
1636. When part only of the property to be sold.

1637. When the whole property may be sold.

§ 1626. Final judgment; what to contain.

In an action to foreclose a mortgage upon real property, if the plaintiff becomes entitled to final judgment, it must direct the sale of the property mortgaged, or of such part thereof as is sufficient to discharge the mortgage debt, the expenses of the sale, and the cost of the action. From 2 R. S. 191, Part 3, ch. 1, tit. 2. § 151 (2 Edm. 199). See rules 60, 61 (Sup. Ct.).

§ 1627. Person liable for mortgage debt may be made defendant, etc.

1. Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action; and if he has appeared or has been personally served with the summons. the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property, and the application of the proceeds, pursuant to the directions contained therein.

2. The people of the state of New York may be made a party defendant to an action for the foreclosure of a mortgage on real property, where the people of the state of New York have a lien on the said real property subsequent to the lien of the mortgage sought to be foreclosed in said action, in the same manner as a private person. In such a case, the summons must be served upon the attorney-general. who must appear in behalf of the people.

From Co. Proc part of § 167; 2 R. S. 191, Part 3, ch. 1, tit. 2, §§ 152, 154.
Am'd by ch. 528 of 1899.

§ 1628. Other actions for mortgage debt, when prohibited.

While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought.

From Id., § 153

§ 1629. Complaint to state whether such action brought. The complaint, in an action to foreclose a mortgage upon real property, must state, whether any other action has been brought to re

cover any part of the mortgage debt, and, if so, whether any part thereof has been collected.

From Id., § 155.

§ 1630. If judgment rendered therein, execution must be returned.

Where a final judgment for the plaintiff has been rendered, in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued, upon the judgment, to the sheriff of the county where he resides, if he resides within the State, or, if he resides without the State, to the sheriff of the county where the judgment-roll is filed; and has been returned wholly or partly unsatisfied.

From Id., § 156.

§ 1631. Notice of pendency of action to be filed.

The plaintiff must, at least twenty days before a final judgment directing a sale is rendered, file, in the clerk's office of each county where the mortgaged property is situated, a notice of the pendency of the action, as prescribed in section 1670 of this act; which must specify, in addition to the particulars required by that section, the date of the mortgage, the parties thereto, and the time and place of recording it.

From Co. Proc. part of § 132.

See rule 60 (Sup. Ct.).

§ 1632. Effect of conveyance upon sale.

A conveyance upon a sale, made pursuant to a final judgment, in an action to foreclose a mortgage upon real property, vests in the purchaser the same estate, only, that would have vested in the mortgagee, if the equity of redemption had been foreclosed. Such a conveyance is as valid. as if it was executed by the mortgagor and mortgagee, and is an entire bar against each of them, and against each party to the action who was duly summoned, and every person claiming from, through, or under a party, by title accruing after the filing of the notice of the pendency of the action, as prescribed in the last section.

From 2 R. S. § 158.

See rule 63 (Sup. Ct.).

§ 1633. Disposition of surplus.

If there is any surplus of the proceeds of the sale, after paying the expenses of the sale, and satisfying the mortgage debt and the costs of the action, it must be paid into court, for the use of the person or persons entitled thereto. If any part of the surplus remains in court for the period of three months, the court must, if no application has been made therefor, and may, if an application therefor is pending, direct it to be invested at interest, for the benefit of the person or persons entitled thereto, to be paid upon the direction of the

court.

From last clause of Id., § 159 and § 160.

See rule 64 (Sup. Ct.).

See also § 2798.

§ 1634. When complaint to be dismissed on payment of sum due.

Where an action is brought to foreclose a mortgage upon real property, upon which a portion of the principal or interest is due, and an

other portion of either is to become due, the complaint must be dismissed, without costs against the plaintiff, upon the defendant paying into court at any time before a final judgment directing a sale is rendered, the sum due, and the plaintiff's costs.

From Id., 161.

§ 1635. Payment after judgment; when proceedings to be stayed.

In a case specified in the last section, if, after a final judgment directing a sale is rendered, but before the sale is made, the defendant pays into court the amount due for principal and interest and the costs of the action, together with the expenses of the proceedings to sell, if any, all proceedings upon the judgment must be stayed; but upon a subsequent default in the payment of principal or interest, the court may make an order directing the enforcement of the judgment, for the purpose of collecting the sum then due.

From Id., § 162.

§ 1636. When part only of the property to be sold. Where the mortgage debt is not all due, and the mortgaged property is so circumstanced, that it can be sold in parcels without injury to the interests of the parties, the final judgment must direct, that no more of the property be sold, in the first place, than is sufficient to satisfy the sum then due, with the costs of the action and expenses of the sale; and that, upon a subsequent default in the payment of principal or interest, the plaintiff may apply for an order, directing the sale of the residue, or of so much thereof as is necessary to satisfy the amount then due, with the costs of the application, and the expenses of the sale. The plaintiff may apply for and obtain such an order, as often as a default happens.

From Id., part of § 163 and § 164.

See § 1350.

§ 1637. When the whole property may be sold.

If, in a case specified in the last three sections, it appears that the mortgaged property is so circumstanced, that a sale of the whole will be most beneficial to the parties, the final judgment must direct, that the whole property be sold; that the proceeds of the sale, after deducting the costs of the action, and the expenses of the sale, be either applied to the satisfaction of the whole sum secured by the mortgage with such a rebate of interest, as justice requires; or be first applied to the payment of the sum due, and the balance, or so much thereof as is necessary, be invested at interest, for the benefit of the plaintiff, to be paid to him from time to time, as any part of the principal or interest becomes due.

From Id., § 165 and 166.

ARTICLE FIFTH.

Action to Compel the Determination of a Claim to Real

Property.

SEC. 1638. Who may maintain action.

1639. Complaint.

1640. Proceedings when defendant denies plaintiff's title.

1641. Id.; when he pleads title.

1642. Proceedings the same as in ejectment.

1643. Proceedings when defendant claims in reversion or remainder.

1644. Judgment awarding defendant possession, etc.

1645. Judgment for plaintiff.

1646. Effect of judgment.

1647. Action to determine widow's dower.

1648. Proceedings, if plaintiff admits defendant's claim.
1649. Id.; when defendant's claim is denied.

1650. This article applies to corporations.

§ 1638. Who may maintain action.

Where a person has been, or he and those whose estates he has have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain an action against any other person to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records the defendant might make to any estate in that property in fee, or for life, or for a term of years not less than ten, in possession, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant to any other estate or lands or not, and also including any lien or incumbrance upon said property, of the amount of value of not less than two hundred and fifty dollars. But this section does not apply to a claim for dower.

From 2 R. S. 312, Part 2, ch. 5, tit. 2, § 1, and first clause of § 3, as amended by Co. Proc. § 449; ch. 50 of 1848; ch. 116 of 1854; ch. 511 of 1855; ch. 173 of 1860; ch. 219 of 1864.

Am'd by ch. 210 of 1891.

Am'd by ch. 526 of 1904. In effect Sept. 1, 1904.

See § 1639.

§ 1639. Complaint.

The complaint in such an action must set forth facts showing:

1. The plaintiff's right to the real property; whether his estate therein is in fee, or for life, or for a term of years not less than ten; and whether he holds it as heir. devisee or purchaser, with the source from or means by which his title immediately accrued to him.

2. That the property, at the commencement of the action was, and, for the one year next preceding, has been in his possession, or in the possession of himself and those from whom he derives his title. either as sole tenant, or as joint tenant, or tenant in common with others.

3. That the defendant unjustly claims or that it appears from the public records that the defendant might unjustly clain an estate or interest or easement therein, or a lien or incumbrance thereupon of the character specified in the last section.

The complaint must describe the property as prescribed in section fifteen hundred and eleven of this act. The demand for judgment may be to the effect that the defendant and every person claiming under him to be barred from all claim to an estate in the property described in the complaint, or from all claim to an interest or ease448

ment therein, or a lien or incumbrance thereupon, of the character specified in the last section, or it may combine two or more of said demands with other demand for appropriate relief.

§ 1640. Proceedings when defendant denies plaintiff's title.

If the defendant, in his answer, puts in issue the matters specified in subdivision second of the last section, and succeeds upon that defence, final judgment must be rendered in his favor, dismissing the complaint, and awarding to him costs against the plaintiff.

From Id., § 7, as amended by ch. 511 of 1855.

§ 1641. Id.; when he pleads title.

The defendant may, in his answer, either with or without the defense specified in the last section, set forth facts, showing that he has an estate in the property or any part thereof, adverse to the plaintiff, in fee, or for life, or for a term of years not less than ten, in possession, reversion, or remainder, as in a complaint for the same cause of action; or the defendant may set forth facts showing that he has an interest or an easement in, or a lien or incumbrance upon, said property; and thereupon he may demand that the complaint be dismissed, or any judgment to which he would be entitled in an action brought by him to recover that estate in said property, or to enforce in any manner the interest or easement therein, or the lien or incumbrance thereupon which he asserts; or he may combine any two or more of said demands.

Am'd by ch. 210 of 1891.

§ 1642. Proceedings the same as in ejectment.

Where an issue of fact is joined in an action brought as prescribed in this article, unless the defendant merely demands that the complaint be dismissed, if the defendant claims an estate in said property, the subsequent proceedings, including the trial, judgment and execution, are the same as if it was an action of ejectment, except as otherwise expressly prescribed in this title; if the defendant claims an interest or easement in, or a lien or incumbrance upon said property, the subsequent proceedings are the same as if it was an action brought by the defendant to establish or enforce the said interest, easement. lien or incumbrance, and the court may award any appropriate relief except as otherwise expressly prescribed in this title.

Am'd by ch. 210 of 1891.

§ 1643. Proceedings when defendant claims in reversion or remainder.

Where the defendant claims the property in question, or any part thereof, by virtue of an estate in remainder or reversion, he need not establish a right to the immediate possession thereof; but where the verdict, report, or decision finds that he has such an estate, it must specify the time when, or the contingency upon which, he will be entitled to possession; and final judgment to that effect must be rendered accordingly, without damages. In such a case, an execution for the delivery of the possession of the property may be issued upon the judgment; but only by the special order of the court, made upon an application by the defendant, or a person claiming under him, and satisfactory proof that the time has arrived when, or the contingency has happened upon which, the applicant is entitled to possession by the terms of the judgment.

From §§ 13 and 16 of the R. S., as amended by ch. 511 of 1855.