The application for the issuance of ancillary letters of administration is granted. The fact that the respondents did not voluntarily seek ancillary administration prior to the commencement of this proceeding does not disqualify them from obtaining such letters. If respondents wish to qualify as ancillary administrators, letters will be granted to them upon their filing a <mask> in the amount sufficient to protect the petitioner who appears to be the only New York creditor (Matter of Gibson, supra). If the respondents-domiciliary executors fail to qualify within 10 days of the service upon their counsel of the decree to be entered hereon, ancillary letters of administration will be issued to the Public Administrator.


The 42d rule of the court of chancery in our state, adopted in 1806, provided for a similar deposit, in such a case. The Revised Statutes of 1830, directed security to be given in various stages of proceedings at law, which the injunction was to restrain. The 31st rule of 1829, provided, that where no special provision was made by law as to security, the officer allowing an injunction might require of the complainant or his agent, a <mask> with security, or his own bond only, to the party enjoined, in such sum as might be deemed reasonable, conditioned to pay such party all damages he might sustain by reason of the injunction. The reasons for adopting this rule, will be found stated in Edwards agt. Bodine, (4 Edwards' Reports, 192.) On the revision of the rules in 1837, this part of the rule was retained, with some modifications. One was, that the security should not be less than $500; and this clause was added: “ Such damages to be ascertained by a reference to a *325master or otherwise, as the chancellor or vice-chancellor having jurisdiction of the cause should direct.” {Rule 31.)


PER CURIAM: As part of an agreement resolving felony and misdemeanor drug charges against Defendant Horacio Padilla-Loza, the State joined in recommending a personal recognizance <mask> for him in exchange for his no-contest plea to the felony. The Clark County District Court accepted the plea, found Padilla guilty, and granted the bond request, allowing Padilla to get out of jail. After changing lawyers, Padilla filed a motion to withdraw his plea on the grounds the State's agreement to the bond modification amounted to an impermissibly coercive inducement, rendering the plea improper. The district court denied the motion. Padilla has appealed that ruling.


Upon an examination of the Metropolitan Commuter Transportation Act and especially subdivision 13 of section 1261 and subdivision 1 of section 1264 of the Public Authorities Law, its legislative history, and the cases interpreting CPLR 5519 (subd [a], par 1) it is evident that the MTA qualifies as a "state agency” and "political subdivision of the state” under such section. Finally, all of the rationale for exempting the State, its other agencies, and subdivisions from this requirement of posting a <mask> on appeal applies equally to the two defendants involved herein.


I fail to find any decisions construing the penal statute in question, but there are numerous opinions in connection with civil actions for forfeiture of bail which hold that lack of notice either to the defendant or to the surety is not a defense for the failure to appear as required under the terms of the <mask>, and that there is no obligation on the part of the district attorney to give the defendant notice of the particular day on which he proposes to move the *515case of the People against the defendant. Nor is there anything in the statute which requires the giving of notice to the defendant. . The People, however, must show that the failure to appear was wilful. “ Wilful ” in this case means “ intentional,” “ deliberate,” that it was not an accident, that the failure to appear was through some act of commission or omission on the part of the defendant.


In the instant case, the administrator died prior to actually receiving the proceeds. Fortunately, no apparent harm was done by his having incorrectly represented to the Supreme Court that he as the decedent’s spouse was her sole distributee and his having failed to give notice of the application to any of decedent’s five children, as well as to any possible creditors. Accordingly, the instant application now being accompanied by duly acknowledged renunciations and consents of those parties having equal rights to letters, to the issuance of letters to petitioner, letters of administration d.b.n. shall issue to petitioner in place and stead of Fulgencio Franco upon his duly qualifying according to law and filing a surety <mask> in the penal sum of $31,000. This sum represents the net sum available for distribution after deducting the counsel fees and disbursements fixed and allowed in the order of the Supreme Court, entered August 1, 1980. Of course, had all issues of collection and distribution been initially presented to the Surrogate’s Court in the usual manner, there would have been no collection without an appropriate order for direct distribution and the need for a bond would not be present.


The surrogate in awarding’ distribution of the estate and acting under the authority conferred by section 2744 of the Code of Civil Procedure as it read on August 5, 1914, the date of the decree, directed the aforesaid stocks to be distributed and paid over in kind at the valuations fixed by the said appraiser. In respect to the appellants, having ascertained the amounts, due under the respective deeds of trust and bonds secured thereby, he directed that that sum be paid to them mainly in the stock belonging to the estate, in; kind, at the valuation fixed by the appraiser as aforesaid. In other words, the decree provided for the payment of each set of <mask> trustees of a certain amount of cash, and the delivery of certain securities which at their appraised value, as ascertained by the surrogate, *94together with cash, would have equalled the amount due in bonds outstanding and interest to the date of the decree in full satisfaction of the claims of said trustees against the estate.


The <mask> also contained the following clause: “We hereby expressly waiving notice of any suit, action or proceeding, of whatever name or nature, against said Conner, for or by reason of any such neglect, omission, non-feasance, misfeasance or malconduct, and¿ expressly stipulating and agreeing that the recovery against said Conner of any judgment, or the order imposing any fine, costs, • charge or liability upon said Conner, for or by reason of any of the matters aforesaid, shall be conclusive evidence of our liability to him under this bond for the full amount which he may, by the terms of such judgment or order, be adjudged or required to pay, together with lawful interest thereon, and all costs, counsel fees and expenses incurred by him in the defense of any such suit, action or proceeding.”


*865On April 18, 1969, Hudson through M-L Servicing, Inc., advised Kennedy that the assumption of the mortgage by Stith was approved, provided the terms relating to interest were modified from the stated 6% to 7%% per annum. In the actions before me, both Kennedy and Stith seek a declaration that Kennedy has the 1 ‘ right ’ ’ to sell and Stith has the ‘ ‘ right ’ ’ to purchase the security and assume the payment of the <mask> and mortgage on its present terms, and that Hudson has no “ right ” to withhold its approval upon the condition that a higher rate of interest be paid.


At pages 455-456 of the same article speaking of the distinction between a marriage and a "reputed marriage” he states: "And it may be said that the idea underlying this distinction is that cohabitation between a man and woman who have not married may afford the parties certain rights with respect to third parties, but they do not, per se, create mutual rights between the couple themselves. In other words, the legislative *425protection of reputed couples differs both externally and internally. The cohabitational <mask> does not obligate the parties, who may terminate it whenever they wish and just as the bond between them is created as a result of cohabitation so it is severed as a result of separation. Only if the common life actually continued until the relevant occurrence, and in particular until the death of one of the partners, it confers certain rights against a third party: these rights derive from the idea that the parties expressed their desire to see themselves as a couple in fact, even though they were not a couple by law.”


It is also contended that, even if the penal sum be treated as liquidated damages, such damages are satisfied by the payment of the civil or criminal fines prescribed in the act. What we have already pointed out is also an answer to this contention. There is, hoAvever, another ansAver. As the law read prior to the amendment of 1897, there were no civil penalties. (Laws of 1896, chap. 112, § 34.) There were provisions only for criminal fines and for the recovery thereof upon the <mask>. It is evident that, under this original act of 1896, it was not intended to limit the *80surety’s liability to these flues, even treating them as liquidated damages. If that had been the intention, liability would have been dependent, first, upon proof of the principal’s guilt, not by a preponderance of evidence, but beyond a reasonable doubt; and, second, upon the discretion of the trial court in awarding punishment. If imprisonment without fine were awarded, there would be no liability at all. The principal would first have to be found guilty beyond a reasonable doubt, and then fined. The bond on this construction would have been a sham and a farce. If, however, the main penal sum were treated as liquidated damages, the act was harmonious and the bond efficacious. If the official entitled to bring an action upon the bond chose to sue for the criminal fine and for that alone, he could do so, and in that case he might rest upon the conviction and sentence. Upon the. docketing of the judgment for the fine as provided in section 36, the official was authorized by the last paragraph of that section to proceed to collect the amount of such judgment, together with the costs of collection, from the sureties on the bond. The sureties having in effect contracted to pay any such judgment, the official in the action against them was not bound to go behind it and prove the offense which resulted in the judgment. Upon the other hand, if the official sued for the full penal sum specified in the bond, as for a. breach of one or more of the prescribed conditions, he had to prove the. breach by independent evidence. The bond was clearly intended to cover the two contingencies and the two remedies. Civil penalties are now prescribed. (Laws of 1896, chap. 112, § 42, as amd. by Laws of 1897, chap. 312.) The act of 1896 was thereby amended to harmonize with this additional feature. To the original conditions of the bond, as prescribed in section 18, was added by the act of 1897 the further condition “that- all fines and penalties which shall accrue during the time the certificate applied for is held and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed,” thus plainly covering these new civil penalties. This is emphasized by the amendment embraced in the last paragraph of the section. That paragraph authorizes the State Commissioner of Excise, “without previous prosecution or conviction for violation of any provision of the Liquor Tax Law, or for the breach of any condition of said bond, commence and maintain an action, in his name, as such commissioner * * * for the recovery of the penalty for the breach of any condition of any *81howl, or for^any penalty or penalties incurred or imposed for a violation of the Liquor Tax Law.” Coupling this with section 42 (supra) the scheme of the act as amended becomes entirely clear. All questions as to the proper plaintiff in actions upon bonds given under the act, or in actions for penalties incurred, are set at rest. The State Commissioner of Excise is authorized to sue the principal for the civil penalties. He is also authorized to sue both principal and surety for the breach of any condition of the bond. These suits are independent. In the action for the civil penalties he may recover from the principal more or less than the penal sum specified in the bond, dependent upon the number of violations proved. Having thus secured his judgment against the principal, he may recover the amount thereof (to the extent of $1,600) from the surety in an action upon the bond. In such an action against the surety he need only prove the judgment against the principal. He may, however, recover upon the bond, independently, the full penal sum upon proof of the breach of any one of its conditions. The prescribed bond, plus the prescribed civil and criminal penalties, constitute the totality of legislative precaution. From the moment the tax is paid there is no trace anywhere of pecuniary interest in the People. Bond and penalties alike are then aimed at one definite end, obedience to the law and decent and orderly conduct of the business authorized by it. We think it clear that the plaintiff was, therefore, entitled to, recover the penal sum of $1,600 according to the true intent and meaning of the contract.


The plaintiffs’ motion for summary judgment declaring the plaintiff contractors ’ bid effectively withdrawn is granted. The defendant shall return the bid <mask> to the plaintiff contractors as required by section 105 of the General Municipal Law. In view of this decision, there is no necessity to rule upon the other aspects of the plaintiffs’ motion. The cross motion of the defendant for summary judgment is denied. No costs shall be allowed to either party.


That the plaintiffs applied to one Frederick A. Snow, of the city of New York, for said loan and he granted the same, and the plaintiffs informed defendants of that fact and introduced them to said Snow, and that they obtained said loan on <mask> and mortgage of the defendant Albert O. Morris, to whom the title of the land was given with the knowledge and consent of the other defendants; that the defendants promised and agreed to pay the plaintiffs .as their commissions and compensation for services in procuring the loan the sum of three hundred and twenty-five dollars ($825).


In New York State, the sealing of adoption records has been mandated for more than 60 years, although courts had the discretionary power to seal these records even before then (Matter of Linda F. M., 52 NY2d 236, 239 [1981], appeal dismissed 454 US 806 [1981]). Currently, adoption records are sealed pursuant to Domestic Relations Law § 114, to protect and ensure confidentiality which is “vital to the adoption process” (Matter of Hayden, 106 Misc 2d 849, 850 [Sup Ct, Albany County 1981]). As expressed by the Court of Appeals, the purpose is to provide anonymity to the natural parents, enable the adoptive parents to form a close <mask> with their adopted child, protect the adopted child from possibly disturbing information that might be found in his records, and allow the state to foster an orderly and supervised adoption system (Matter of Linda F.M., 52 NY2d 236, 239 [1981]). There have been challenges to the power of New York State to seal adoption records, but the courts have determined that these statutes are not in violation of the Equal Protection Clause of the 14th Amendment and are constitutional (Matter of Linda F. M., 52 NY2d 236 [1981]; Matter of Romano, 109 Misc 2d 99 [Sur Ct, Kings County 1981]). Petitioner is correct in noting that legislation is pending which would impact upon these statutes and policies; however, currently they remain in place.


The Surrogate, however, has power to: “ direct and enforce for the protection of the surviving spouse an equitable distribution, allocation or valuation of the assets, and to enforce the lawful liability of a fiduciary, and * * * to make such other direction consistent with the provisions and purposes of this section as the court may deem necessary for the protection of the surviving spouse.” (Decedent Estate Law, § 18, subd. 1, par. [h].) This provision, which was enacted in 1936, states that the grant by a decedent to his representative of power to act without <mask>, to invest in nonlegals, to allocate and value assets, etc. is not to be deemed ‘‘ either singly or in the aggregate to give to a surviving spouse an absolute right of election ”. (Cf. Decedent Estate Law, § 125, concerning limitations on powers and immunities of estate representatives generally.) The provision was: “ designed to vest in the surrogate’s court having jurisdiction of the estate a supervisory power which will assure fair treatment to the surviving spouse but which will leave undisturbed provisions found commonly in wills for dispensing with a bond, for enlarging the field of securities and investments, and for the retention of investments already owned by the testator at his death. * * * It is felt that this supervision of the surrogate’s court will operate to prevent any real injustice to the surviving spouse and will assure testators a reasonable flexibility in their testamentary provisions. Any actual fraud attempted upon the surviving spouse by the tenor of the will confers an absolute right of election despite this amendment. The bill, in effect, will allow a testator to do what otherwise he might lawfully do at present with his property but protects the rights of the surviving spouse by granting to the surrogate a supervisory power to assure the spouse of fair participation in the distribution of the estate.” This is not a trust which “ will yield little or no income or otherwise ingeniously * * * deprive the widow of her intestate ” share within the meaning of Matter of Clark (275 N. Y. 1, 5). The power of this court is not limited to those powers specifically enumerated in paragraph (h) of subdivision 1 of section 18 of the Decedent Estate Law; it is one of general equitable supervision to assure both the testamentary scheme proposed by the decedent and fair participation of the spouse (Matter of Herts, 165 Misc. 738; Matter of Wardi, 129 N. Y. S. 2d 279, affd. 284 App. Div. 978; cf. Matter of Curley, 245 App. Div. 255, affd. 269 N. Y. 548).


It is against this background that we must read the plaintiff’s complaint that, having sold his property in 1931 subject to a mortgage securing his <mask>, he has been called upon to pay a deficiency judgment because of the “ negligence ” of the defendants in failing to promptly complete foreclosure against plaintiff’s grantee. We might note parenthetically that plaintiff has received the benefits of section 1083-a of the Civil Practice Act, in that the value of the property has been offset against the mortgage indebtedness without regard to the amount of the bid at the referee’s sale and he has also received the benefit of section 1083-b of the Civil Practice Act, without which an action might have been maintained against him for his full indebtedness on the bond without resort to foreclosure. Now, having unsuccessfully attempted to stay a deficiency judgment against him in favor of the certificate *424holders as assignees of the bond and mortgage, plaintiff in this law suit demands an indemnity for the amount he has been called upon to pay from those who were charged with the enforcement of the certificate holders’ rights under that mortgage. It would seem that even if properly pleaded as a defense in the foreclosure action, plaintiff could not have there defeated a deficiency judgment against him in the absence of a request to foreclose or an offer to pay. (Glacius v. Fogel, 88 N. Y. 434, 442; Kings County Trust Co. v. Derx, 237 App. Div. 548; Schenectady Savings Bank v. Ashton, 120 Misc. 268.) Aside from that, however, this complaint does not set forth a cause of action in negligence against defendants Van Schaick and Pink. They cannot be charged with failure to act more promptly in the unprecedented situation which occurred during those economically tempestuous years. Furthermore, even assuming negligence to have existed, it is not actionable except by one to whom the duty of due care was owed. “ Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. ‘ Proof of negligence in the air, so to speak, will not do.’ * * * ‘ Negligence is the absence of care, according to the circumstances.’ ” (Cardozo, Ch. J., in Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 341.)


The petition alleges, among other things, that: On February JO, 1961, the premises were sold and conveyed to the petitioner for $12,000, $2,000 in cash and the remainder by purchase-money <mask> and mortgage. Due notice to quit ivas served upon the vendor and his wife, who have failed to comply therewith and continue in possession without permission of the petitioner.


In anticipation of this national generous assumption of the funding of highway programs, the defendant State was revising its own financial plans to enable it to receive the billions of dollars being made available for it through this medium. By chapter 761 of the Laws of 1956, the State Legislature passed and Governor Harriman approved a proposition for a $500,-000,000 <mask> issue for such eventuality. In the 1956 general election, that bond issue was approved by the voters of our State. This five hundred million dollars was required as the anticipated requisite 10% to ‘ ‘ match ’ ’ the awaited four and a half billion dollars from future national budgets.


“If any franchised motor vehicle dealer who receives a written notice of modification institutes an action *763within one hundred twenty days of receipt of such notice as provided in section four hundred sixty-nine of this article to have a review of the threatened modification, such action shall serve to stay, without <mask>, the proposed modification until a final judgment has been rendered in an adjudicatoiy proceeding or action as provided in section four hundred sixty-nine of this article. A modification is deemed unfair if it is not undertaken in good faith; is not undertaken for good cause; or would adversely and substantially alter the rights, obligations, investment or return on investment of the franchised motor vehicle dealer under an existing franchise agreement. In any action brought by the dealer, the franchisor shall have the burden of proving that such modification is fair and not prohibited” (Vehicle and Traffic Law § 463 [2] [ft] [3]). “Private actions.


Section 74 (1) (b) of the General Business Law provides that private investigators and guard and patrol agencies are required to file a $10,000 <mask> "conditioned for the faithful and honest conduct of such business”. This section further provides that: "any person injured * * * by the wilful, malicious and wrongful act of the principal or employee may bring an action against such principal, employee or both on said bond in his own name to recover damages suffered by reason of such wilful, malicious and wrongful act. In each and every suit, or prosecution arising out of this article, the agency of any employee as to the employment and as to acting in the course of his employment, shall be presumed”. (Emphasis added.)


The refinancing also gave “the Authority * * * a first mortgage lien” on its real property to “secure all obligations and liabilities” under the loan agreement. This was a “condition precedent” to the issuance of the bonds. In its written consent, the Board stated that “the equity represented by such <mask> reserves can be more effectively utilized in connection with a prepayment of the mortgage * * * to give the Hospital greater flexibility and options in dealing with its financial needs.” This leads to the conclusion that the bonds were defeased as part of the plan to sell the real estate and is evidence that the emphasis was on sale, since if the Board was seeking means to preserve MEETH, defeasance may not have been desirable.


With respect to the last-mentioned relief sought; it appears that prior to the completion of the reference the defendant was arrested pursuant to an order of arrest and released upon the filing of a surety <mask> in the sum of $15,000 requiring him, according to its terms, to “ obey the direction of the court * * * or, in default of his so doing, that at all times he will render himself amenable to proceeding to punish him for the omission ”.


Provided that Owner is in compliance with the payment provisions of this Contract, Contractor shall save and keep Owner and Owner's property free from all mechanics' and materialmen's liens and all other liens and claims arising out of the Contractor's Work hereunder. In the event any such lien or claim is filed by anyone claiming by, through or under Contractor, Contractor shall, upon request by Owner and not as a Cost of the Work, remove and discharge same or provide a <mask>. Finally, the Construction Contract contained a provision regarding conditions precedent:


The rule of law which is applicable to the state of facts in the present case is briefly but very correctly stated by the late Judge Story, in his valuable treatise on the law of agency, at the commencement of the 210th section. He says it is a rule of general application in regard to the duties of agents, that in matters touching the agency they cannot act so as to bind their principals, where they have an adverse interest in themselves. This rule is founded upon the plain and obvious consideration, that the principal, bargains in the employment, for the exercise of the disinterested skill, diligence and zeal of the agent, for his exclusive benefit. It is a confidence necessarily reposed in the agent that he will act with a sole regard to the interests of his principal, as far as he lawfully may ; and even if impartiality could possibly be presumed on the part of the agent where his own interests were concerned, thát is not what the principal bargains for; and in many cases it is the very last thing which would advance his interests. The late Chief Justice Marshall acted upon this principle in the case of Short v. Skipwith, (1 Brock. Rep. 116,) where the defendant had made an investment for the plaintiff by the purchase of a <mask> for the delivery of certificates, partly upon his own credit, when he had the cash funds of his principal, with directions to invest them in such certificates. It is true the learned chief justice thought the defendant, by his instructions strictly considered, was not authorized to invest in certificates in this indirect way, by the purchase of a bond for their delivery, yet he puts his decision upon the express ground of the purchase upon credit; and the probability *580that he might have been induced to take this bond, instead of trying to purchase certificates directly, for the sake of the credit he got upon the purchase. The right of the principal to repudiate a transaction where the agent acts without express authority in such a manner that his interests may have conflicted with his duty to his principal, does not depend upon the question whether the principal has in fact been injured thereby. But the general interests of justice require that the principal shall have the right to repudiate the transaction without reference to that question. For it would, in the greater number of cases, be absolutely impossible to ascertain what influence the personal interest of the agent has had upon his acts. It is sufficient to say the act was unauthorized; and has not been ratified by the principal with a knowledge of the facts which would entitle him to repudiate it.


A custodial parent’s conduct may warrant a change of custody if it reaches “the level of deliberately frustrating, denying or interfering with” the parental rights of the noncustodial parent so as to raise doubts about the custodial parent’s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child’s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [“While one parent’s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children’s <mask> to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention” (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded sole custody, notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness.


An undertaking "shall be for double the amount of the judgment ... unless given by an admitted surety insurer in which event it shall be for one and one-half times the amount of the judgment ...." ( Code Civ. Proc., § 917.1, subd. (b).) Even using an admitted surety insurer, as Sabella did, would require a <mask> in an amount exceeding $77 million.


The heart of this <mask> dispute is whether Western, as surety, must pay on three performance bonds3 it issued guaranteeing Central Rock would "faithfully perform" a contract negotiated with real estate developer James A. Hughes, operating under the name JAH Nicholasville Investment, LLC ("JAH").4 Central Rock acknowledges halting work, but only after JAH ceased paying Central Rock for work it *105had already completed, leaving City with an unfinished, deteriorating residential-commercial subdivision. Western argues JAH's failure to pay Central Rock excused further performance under the contract by Central Rock.


The right of the plaintiff to succeed was resisted upon the ground that there was no cause of action in favor of the plaintiff, as assignee. And this broad proposition rests upon the assumption that it: was-an action in which the principal was suing her own surety, upon a <mask> executed by herself, for the wrongful acts of her co-principal, essaying in effect to make the surety liable to his own principal, which is an unheard of proceeding, and if successful would reverse the whole theory of the relation of principal and surety.


The contention of the appellant’s counsel rests upon the general principle that the assignor of a chose in action not negotiable, can only transfer the interest he has in the instrument, and the purchaser only takes such interest as his assignor had to part with, and in support of his views of the case the counsel places much reliance on the cases of Bush v. Lathrop (22 N. Y., 535), Greene v. *346Warnick (64 N. Y., 220), and Trustees of Union College v. Wheeler (61 N. Y., 86.) But the case of Bush v. LatJvrop is overruled upon tlie point under consideration — the effect of tlie doctrine of estoppel. Judge Earl says, in delivering tbe opinion of the court, in Greene v. Warnick (supra), page 225; “ Under the authority of the case of Moore v. Metropolitan Bank, Noble ought to have been held estopped from asserting his title to the <mask> and mortgage in consequence of his absolute assignment of the same, by which he conferred the apparent ownership upon Preston and apparent authority to sell, and so, for the decision of that case (Bush v. Lathrop), must now be considered to have been erroneous.”


If this statute is to be applied, it is very clear that the plaintiff can have no relief because of the large expenditure made by her for improvements, etc. There is no pretense of an agreement to reimburse her for such outlays and expenditures. She knew all about the title; that it was held by Harper, and her expenditures, etc., were as owner of the property, and not because she was to be compensated. (Porter v. Porter, General Term decision, 2d department, affirmed in Court of Appeals; Kassel v. Becker, 25 How., 377, 378.) But, assume for a moment that this statute does not apply, for the reason.that the plaintiff did not pay the purchase money, or any part thereof, at the time of such purchase, but that Harper paid what was paid, and secured the balance by his own <mask> and mortgage. What interest has the plaintiff in this surplus which ean be enforced? There is no evidence of any agreement to reconvey. There has been no writing of any kind creating or declaring any trust. True, she paid the mortgage *284which had been given, but she subsequently received a large sum on the mortgage given to Lamoraux, and from the foreclosure of which this surplus was produced.


As the residue of the estate is bequeathed to the widow, and as it is necessary that the executors should protect not only her but also the cestuis que trustent *645and those who take at' the expiration of the trust, distribution to the widow should be made only upon the execution by her of an agreement with the executors to deliver to them sufficient securities to make it possible for them to make a substitution if the yield of the securities mentioned in the will falls below the amount there stated. For the faithful performance of such agreement, a <mask> should be given which I will fix at the sum of $8,000. Matter of McDougall, 141 N. Y. 21.


The <mask> and mortgage must stand as a security for the amount due on the execution, with interest to the time of tender. It is scarcely necessary to cite authorities to prove, that where advantage is taken of the party’s circumstances, *“■' xv y so that he acts not voluntarily but under necessity; where a deed is obtained by undue influence, and the process of law abused, a contract resting on such a basis cannot receive the countenance of a Court of justice. (Nichols v. Nichols, 1 Atk. 409. Thornhill v. Evans, 2 Atk. 330. 1 Mad. 243. Gould v. Oxenden, 3 Bro. P. C. 560. Thornhill v. Evans, 6 Bro. P. C. 614. Lamplugh v. Lamplugh, 1 Dick. 411.)


Finally. I find nothing in the case to warrant any claim by the defendant to any commission, or to any lien upon the <mask> and mortgage in question, for services or expenses rendered or paid as the agent or attorney of the late executor. Such former executor could give no such lien if any such services were rendered or expenses incurred. I do not, therefore, perceive that there is any occasion for ordering an account between the parties. I can only regard the defendant, however sincere he may have been in believing that he was not bound to deliver the property, as a wrong doer. The decree should therefore award to the plaintiff the bond and mortgage, and direct its delivery to him by the receiver, and award to the' plaintiff his costs, with an allowance of two hundred and fifty dollars.


Kevin Goosey was sentenced in an unrelated case to probation, one of the conditions of which was that his residence was to remain open to a warrantless search by law enforcement officers at any time to verify that he was complying with other conditions of his probation. So, on the evening of May 25, 2014, City of Memphis Police Officer Jason Ketchum enlisted the assistance of Missouri State Highway Patrol Sergeant Michael Kaugh and Trooper Brett Tappendorf to conduct a <mask> compliance search of Goosey's residence. None of the law enforcement officers had reason to know that McElroy would be at Goosey's residence.


In opposition, plaintiff trustee in bankruptcy for Isaac-son Steel Erectors, Inc., bankrupt (Isaacson), contends that the complaint in Action No. 1 initially pleads a cause of action for work, labor and services performed by Isaacson. The complaint then goes on to assert that Isaacson filed a notice of mechanic’s lien against Steelco which was later canceled and discharged of record by the posting of a <mask> on which Travelers was the surety. The complaint concludes that plaintiff has performed all of the terms and conditions of the bond oh its part to be performed and demands a money judgment in the sum of $109,375.


The testimony that such an agreement was made being inadmissible and incompetent, there is not sufficient evidence of an intent on the part of Mrs. Rowell that a merger should take place. The defendants urge that because no payments of principal oi interest were made upon this <mask> from the time Mrs. Rowell acquired it until she assigned it to the bank is evidence of such an intent. Mrs. Rowell was the owner of the mortgage and she and her husband were owners of the property upon which it was a lien as tenants by the entirety. It is nothing unusual that no payments were made upon the mortgage under these circumstances. Mrs. Rowell took an assignment of the mortgage and not a satisfaction of it; she never executed a satisfaction of the mortgage during the time she was the owner of it nor did she execute a subordination agreement or an agreement that the mortgage should merge with the title. Under these circumstances the failure of Mr. and Mrs. Rowell to make payments is no evidence of an intent that the mortgage should merge.


Here, however, Rosetta alleges Citi<mask> did more than merely receive or review her loan modification applications. She alleges CitiMortgage refused to consider her for a loan modification unless she was three months behind in her mortgage payments, required her to submit duplicate or nonexistent documents, lost or mishandled her documents, and misstated the status of her applications, causing her damages. Under the circumstances, Rossetta states a cause of action for negligence.


"§ 339-z. Lien for common charges; priority; exoneration or grantor and grantee "The board of managers, on behalf of the unit owners, shall have a lien on each unit for the unpaid common charges thereof, together with interest thereon, prior to all other liens except only (i) liens for taxes on the unit in favor of any assessing unit, school district, special district, county or other taxing unit, and (ii) all sums unpaid on a first <mask> of record or on a subordinate mortgage of record held by the New York job development authority or held by the New York state urban development corporation. Upon the sale or conveyance of a unit, such unpaid common charges shall be paid out of the sale proceeds or by the grantee. Any grantor or grantee of a unit shall be entitled to a statement from the manager or board of managers, setting forth the amount of the unpaid common charges accrued against the unit, and neither such grantor nor grantee shall be liable for, nor shall the unit conveyed be subject to a lien for, any unpaid common charges against such unit accrued prior to such conveyance in excess of the amount therein set forth. Notwithstanding the above, the declaration of an exclusive non-residential condominium may provide that the lien for common charges will be superior to any mortgage liens of record.” (Italics supplied.) Thus, the first sentence of the statute clearly recognizes the priority of the first mortgagee’s lien over that of the condominium. If the second sentence, providing that "unpaid common charges shall be paid out of the sale proceeds or by the grantee” is read to include a first mortgagee-purchaser, this interpretation utterly contradicts the priority so clearly set forth one sentence earlier. On the other hand, if the provision in question is read to apply only to nonparty purchasers, the meaning and purpose statute remain and no self-defeating contradiction is presented.


Here, the court found: "The facts in this case involving Mr. Cole and [the child] are unique because it is absolutely clear that Mr. Cole wanted a child with Ms. [Tsuchimoto]. He was not a mere bystander and donor. He underwent a medical procedure for the specific purpose of retrieving viable semen in order to impregnate Ms. [Tsuchimoto]. This had been discussed thoroughly between the two of them. ... [¶] Mr. Cole strongly contends that his real home was with his wife. The evidence is consistent with him having two residences: one with his wife and one with Ms. [Tsuchimoto]. As a pilot Mr. Cole was able to spend 2 to 4 days every week with Ms. [Tsuchimoto] and [the child][3 ] and some of the rest of the time with his wife. The court must look at the reality of the relationship. For the 2 ½ year time there is not any question that a relationship existed between [the child] and Mr. Cole. During part of the time for whatever reason he paid the <mask> payments for Ms. [Tsuchimoto]. As stated above he was involved with [the child] in his life holding him out as his child in that aspect of his life. For the court to impose an artificial barrier that merely because he was not married to this woman but was married to another woman under the circumstances of this case would be improper. Had these two parties succeeded in having a natural child there would not be any question of parentage and financial responsibility. Mr. Cole was interested in avoiding financial responsibility. But it is undeniable that Mr. Cole encouraged his relationship with [the child] and his mother. The parties openly spoke of marriage; Mr. Cole at one time had separated from his wife for a period of months and then returned to her. But Ms. [Tsuchimoto] always held out the hope of a permanent relationship with Mr. Cole, which he encouraged. The court cannot turn a blind eye that the relationship must be in the best interest of the child .... The factors listed above convince this court that for the first 2 ½ years of [the child]'s life Mr. Cole was his active parent."


*537The Attorney-General states that Judge Collins of the Court of General Sessions recently made the minutes of a New York county grand jury, in its investigation of the State Title and <mask> Company, available to the Federal authorities; that Judge Knox, a United States District Judge for the Southern District of New Ytirk, permitted the district attorney of New York county to inspect the minutes of a Federal grand jury.


During the months of October and ¡November, 1914, the decedent, who was then the owner of certain bonds and mortgages aggregating $11,500, transferred to her husband “in consideration of one dollar and other good and valuable consideration ” an undivided one-half interest in the various bonds and mortgages, so that they should hold the same as joint tenants and not as tenants in common, and so that the survivor should have the absolute title to and ownership in the bonds and mortgages. On November 5, 1914, James Holder, the decedent’s husband, being then the owner of a bond and <mask> in the sum of $16,000, assigned and transferred to the decedent, for good and valuable consideration, an undivided one-half interest therein, and provided in the assignment that he and the decedent should hold it as joint tenants and not as tenants in common, with absolute title to the survivor. The appraiser included the entire value of these bonds and mort*120gages in the- taxable assets of decedent’s estate. I am inclined to think that this was error, as the right of the husband to the bonds and mortgages was derived from the instruments executed by him and the decedent, which transferred their respective interests in the bonds and mortgages for a valuable consideration to themselves as joint tenants. The right of the survivor to the bonds and mortgages being derived from a contract entered into for a valuable consideration, it is not subject to a transfer tax. (Matter of Heiser, supra, and cases there cited.)


Examination of the law of this State fails to disclose any case in which the courts have held that the surrogate has power to direct the representative of the estate to presently pay in a lump *529sum the present value of a continuing contractual obligation, as requested by her here. The authority of the court to grant relief here must be found in the Surrogate’s Court Act. In certain other States the probate courts are given by statute the power to set aside a fund sufficient to pay the periodic payments due under the contract, or to pay presently a lump sum which, in this case, would be measured by the present fife expectancy of the promisee. There is no- statutory' authority to pay the lump sum in New York. Section 212 of the Surrogate’s Court Act, in my opinion, applies only to the present payment of liquidated claims not yet due, “ after deducting a rebate of legal interest.” It does not contemplate or authorize the commutation of future periodic payments or the payment over of the present value based on the life expectancy of the promisee. Section 244 of the Surrogate’s Court Act has no application here since it is limited to the specific purposes of a sale, <mask> or lease of real property under article XIII in which it is contained.


The court feels, however, that the investments in the bonds of the Chicago, Bock Island and Pacific Railway Company and of the Cleveland Union Terminal Company stand on a different basis. Whereas it is entirely true that the maturity of these bonds postdated by considerable periods the time when the beneficiary was entitled to receive payment of the accumulated income in cash, they were securities of an entirely different nature from the shares in the private mortgages hereinbefore considered. For securities of this type, a ready open market is maintained which enables a holder to realize upon them without difficulty or sacrifice of their intrinsic value. In this respect they resemble United States government bonds which are substantially equivalent to currency. In participations in mortgages on the other hand, it is a matter of common knowledge that the market is almost wholly confined to the *780particular concerns by which such securities are issued, with the result that if the latter so elect, their salability may be either wholly destroyed or the price depressed out of all proportion to intrinsic value. Assuming, therefore, that the particular securities, at the time of their purchase, were legally authorized investments for trust funds, which has not been questioned, the court determines that the open market which was available for their disposal placed these securities in an entirely different situation from the <mask> participations and furnished every reason for the trustee to assume that they were capable of the ready liquidation which would be required to enable it to meet its obligations to the cestui que trust on January 20, 1932. The objection in this connection is, therefore, overruled.


I have already stated, that I consider the appellant’s assignment operative as to one-fourth of the premises, and as to the other three-fourths, it must be placed upon the footing of an unregistered <mask>. The respondent’s morto-gn-g Was recorded as an absolute deed, but was- never re- ° ° * gistered as a mortgage. They are both, therefore, unregistered mortgages. (Dey v. Dunham, 2 John. Ch. Rep. 189.) The second mortgage does not necessarily gain a- ' . . ? , , .. , preference unless registered; and not even then, if the second mortgagee has notice of the first mortgage. The rule, “qui prior est tempore, potior est jure” applies, unless the appellant has been guilty of fraud or culpable negligence, by leaving Wattles in possession of the mortgaged premises. Fraud is not imputed, and in point of negligence, the parties are equal, “ it is a common rule, (say the books) that when of two persons equally innocent, or equally blameable, one must suffer, the loss shall be left with him on whom it has fallen; and here comes in the other rule, that the equities being otherwise equal, the priority of time must determine the right.” (Berry v. Mutual Insurance Company, 2 John. Ch. Rep. 603.) It seems to me, therefore, that the appellant is entitled to preference as to the unregis tered mortgage upon the three-fourths of the property purchased by Wattles at the Sheriff’s sale.


Petitioners do not offer any good reason for not having sought leave of the appointing court before beginning the instant proceeding. They cannot, and do not, claim ignorance of that action for one of the petitioners herein is a defendant therein. Also, this proceeding was brought pursuant to RPAPL article 7; the legislature provided that proceedings such as this were to be summary. This court would ill serve that purpose were it to mark this proceeding off-calendar so that petitioners might move in the <mask> foreclosure for leave to proceed here nunc pro tunc and then, if and when petitioners were successful, wait for petitioners to move herein to restore this proceeding to this court’s calendar. Accordingly, and instead, this court dismisses the proceeding, but without prejudice to commencement of another proceeding upon securing the appropriate leave.


On the trial the attorney for the mortgagor produced an instrument that purported to release the personal property from the lien of the <mask>. The release was signed by the president of the mortgagee bank, was duly acknowledged by him and was later recorded. ‘ ‘ A written release, in order to be effective, must be executed and delivered.” (49 N. Y. Jur., Release and Discharge, § 10.) The defendant bank admitted the execution of the release, but denied delivery.


*321If the trustee shall satisfy, sell or enforce the <mask> to serve the trust which requires liquidation, he ill serves the other trusts by disturbing their funds. He is divided in duty, and Ms fidelity to one relation is disloyalty to the other. There is then •a day of wrath, either for the trust which cannot be satisfied or for the other trusts which would suffer from a wasteful change of investment.


But even more significant is the fact that the proof that the defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, did not act officiously because the revocation of the power of attorney was ineffective against them, which is an argument in support of the defendants’, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, equitable subrogation theory, is also proof which supports the validity of the <mask> held by the defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill. Thus, if the revocation of the power of attorney is ineffective against these defendants, Robert Reiner, Harold Robinowitz, Elayne Friedman, Bernard Hoch, Regency Associates and Samuel D. Brill, there is no basis upon which to question the validity of the mortgage which they hold and it is unnecessary to resort to equitable subrogation to protect their rights.


The plaintiff, a building contractor, contracted to build a house for the defendant upon defendant’s land, and the plaintiff took from the defendant a conveyance of the land by way of security and began construction. All of this was pursuant to a written contract. A building loan <mask> was secured by the plaintiff from the third-party defendant (bank) from which a “first draw ” had been received, part of which was admittedly demanded by and paid to the defendant by the plaintiff. A dispute arose 'between plaintiff and defendant as to proper performance after construction was partially completed. The plaintiff brings this action in the nature of a foreclosure which seeks a *589judgment declaring the validity of the bank’s building loan mortgage and a foreclosure sale of the equity in the land to satisfy an alleged balance due from the defendant to the plaintiff. Defendant interposed an amended answer and counterclaims substantially denying that he owed any money to the plaintiff and affirmatively seeking damages against the plaintiff for poor workmanship and deliberate deviation from the contract plans and specifications and for wrongfully obtaining a building loan advance (first draw); also, recovery for alleged damages to trees in and about the premises.


Plaintiff and the defendant Ruth Rosenblum entered into a contract dated June 28, 1974 whereby plaintiff was to purchase defendant’s house in the City of Cohoes for the agreed price of $45,000. The closing was to take place on or about October 1, 1974, but the contract was contingent upon the purchaser obtaining a <mask> of $35,000. The closing did not take place because of the purchaser’s inability to obtain financing. On December 28, 1974 the plaintiff was served with a summons and complaint commencing an action by the seller, Ruth Rosenblum, for specific performance. Thereafter, negotiations were undertaken to attempt to find a satisfactory solution to the problem. When no apparent progress had been made, Mrs. Rosenblum was able to find another buyer and on May 13, 1975 she signed a contract for the sale of her home with Mr. and Mrs. Murphy for a price of $42,500. It is undisputed that at the time they signed the contract, the Murphys had no knowledge of Mr. La Marche’s contract or of his interest in the property.


*The opinion of the court of chancery in favor of this right, seems to proceed upon the ground that the effect of the judgment against Storrs & Co. was to bind all their rights over the mortgaged premises as they existed at that time, and to substitute the judgment creditors in their place; and as Storrs & Co. then had a right to set off the $3000 on the <mask>, this right became vested in the judgment creditors of Storrs & Co. by virtue of the judgment.


We summarily dispose of two of these arguments, namely that the <mask> was prohibited by the Trust Code and ethical rules. Both arguments were raised for the first time in a posttrial motion to reconsider. An issue must be presented to the circuit court at the earliest opportunity to preserve it for appeal. LaFont v. Mooney Mixon , 2010 Ark. 450, at 15, 374 S.W.3d 668, 676. And it is well settled that our court will not consider an argument made for the first time in a posttrial motion. See Lee v. Daniel , 350 Ark. 466, 91 S.W.3d 464 (2002).


The true and only issue presented by the pleadings was his breach of obligation to file the <mask> and the damages legally resulting from any neglect to do so. Yet the case, as presented to the jury, assumed to try the question of his fraud in advising the giving of the satisfaction piece of the mortgage after a full settlement of the mortgage debt between plaintiff and Patterson, in which defendant was not shown to have had any agency, and in presenting for the consideration of the jury his responsibility for some fraud or breach of promise of Patterson in failing to pay his note for $2,600 in such collateral manner as he had engaged when he gave it.


The Surrogate’s Court has full and complete jurisdiction in law as well as in equity to administer justice in all matters properly before it. (SCPA 201; see also Matter of Sturmer, 277 App Div 503 [1950]; Matter of McCoy, 100 Misc 2d 301 [1979].) The equity powers of the surrogate are broad, and can be invoked without limitation to do full and complete justice between the parties. (Id.; see also Matter of Baby Boy C., 84 NY2d 91 [1994]; Matter of Lonas, 197 Misc 678 [1949]; Matter of Beall, 184 Misc 881 [1945]; Matter of Grieco, 172 Misc 723 [1939].) Justice requires the court to apply principles of equity in this case and “not countenance a ritualistic invocation of the Statute of Frauds, especially where the party claiming its protection has acquiesced in and profited [or benefitted] from the very agreement it now seeks to abjure.” (Brockport Devs. v 47 Ely Corp., 82 Misc 2d 310, 315 [1975].) The respondent should be estopped from using the statute of frauds as a shield, or as a sword for that matter, to escape the decedent’s unequivocal promise to pay off the <mask> from the assets of his estate. The petitioners relied upon this promise to their detriment by performing all of the management responsibilities with respect to the subject property. This performance by the petitioners was fully accepted by the decedent for a full four years prior to his *560death. The decedent should be held to his end of the bargain, and thus the petitioners are entitled to specific performance of the decedent’s promise by his estate.*


Section 138 of the Tax Law, another of the sections excepted from the portion of the Tax Law not made applicable to Oneida county by section 15 of the special act, provides as follows: “ The lien of a <mask>, duly recorded or registered at the "time of the sale of any lands for nonpayment of any tax or assessment thereon, shall not be destroyed, or in any manner affected except as provided in this section. The purchaser at any such sale shall give to the mortgagee a written notice of such sale within one year from the expiration of the time to redeem.”


In Crane agt. Turner (67 N. Y., 437) Pierce had executed a <mask> upon premises of which he had possession under a contract of sale, and, after receipt of a deed, he conveyed the-premises and received from the grantee who had notice of the prior mortgage, a mortgage for a part of the purchase-money. Pierce then assigned his mortgage to the defendant' Turner, assuring him that the mortgage was the first lien.' In an action to foreclose the first mortgage, Turner claimed that his mortgage was entitled to priority. Both mortgages having been duly recorded, it was held upon the authority of the preceding two cases above referred to (1), that as Pierce would be estopped from claiming a priority if he had retained the mortgage, his assignee had no superior right and was also estopped; and (2), that the recording act did not aid the defendant.


Under such a statute, if the mortgagee permits possession to remain in the mortgagor, it is incumbent upon him to record his *638<mask> to protect Ms lien as against the three classes specified in the statute. Recordation permits any such person, who seeks security in connection with an extension of credit or transfer of funds, to check whether the chattel is subject to any incumbrance. The rationale underlying the statute is that, as between the classes specified and a prior mortgagee who has failed to record his mortgage, the loss should fall on the latter, who placed the mortgagor in a position of apparently unrestricted ownership and thus enabled him to perpetrate a fraud.


“If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be *365true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the <mask> on the Property, and (2) the Note secured by the Mortgage.” The llardos thus contend that under HAMP and principles of contract law and the law governing waiver and estoppel, the court should mandate that the plaintiff permanently modify the loan by reinstating the terms of the TPE In opposition to these arguments, the plaintiff contends that it was not required to permanently modify the mortgage loan if it determined during the trial period that the borrower did not meet the requirements under HAMP for a modification. In support of these contentions, the plaintiff cites the following language from the Trial Period Plan:


*41tended by the learned counsel for the appellant, the words, “any remedy at law or in equity for obtaining possession of, or procuring a sale of, the trust property hereby transferred,” qualify and govern all the other words of the first paragraph of the eighth article. The contention of the defendant would, in effect, exempt all of the property of the corporation, not covered by the <mask>, from liability to be taken in satisfaction of its bonded debt. It is not so stipulated in the trust deed, nor in the bonds, nor in the coupons. But, on broader grounds, we think the contention of the defendant ought not to prevail. As before stated, we concede that the bonds and trust deed are to be construed together, as forming the contract, in case they can be harmonized, but, in case the bonds and deed contain wholly inconsistent provisions, those contained in the bond must prevail over those contained in the deed. The provisions of the bond meet the eye of the purchaser, and are designed by the corporation to influence their sale, and they cannot be nullified by an inconsistent provision contained in the trust deed. As before stated, these bonds and coupons contain an absolute promise to pay definite sums on specific dates, which implies a right of action in case of failure; and, if the eighth article is capable of the construction contended for by the corporation, it is utterly inconsistent with the bond, which in that case must prevail. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.


The defendant, who lives in a suburb in the Albany area, was seeking to refinance the house she lived in with her husband. (Although it seems that he was intended to be a party to the <mask> as well, he did not participate in the negotiations and initial document exchanges and thus is not involved in this lawsuit.) She dealt with the plaintiff firm, some 200 miles away, by telephone and fax. The record contains documents signed by the defendant showing receipt of a preapplication disclosure of a $100 application fee and a few other fees, for appraisals and similar charges. She also signed and faxed back a lock-in agreement in full compliance with 3 NYCRR 38.6. This document secures an offer of a fixed rate mortgage at 5.75% with no points, good for one month, in consideration of a payment of $1,100 (one percent of the loan principal). As the regulations require, this payment would be refunded at the closing of the loan, or if the loan were rejected because of the results of an appraisal, the failure of a third-party lender to cooperate, or the credit worthiness of the applicant. The defendant also signed a credit card authorization for these fees.


In construing this agreement, it is axiomatic that should there be any ambiguity in the construction of the term “secondary financing”, the ambiguity should be construed strictly against the draftsman of the agreement, in this case TASCO. (Chase Manhattan Bank, N. A. v Mehlman, 59 AD2d 694; James Berardi, Inc. v Callanan Inds., 63 AD2d 804; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 348.) Absent further description, the court can only conclude that the term “financing” or “secondary financing” as stated in the first <mask> relates to the borrowing of money or the receipt of credit for some purpose, the repayment of which would be secured by a mortgage. There is nothing in the papers to suggest that the plaintiff while in possession as owner, borrowed additional moneys and gave as security therefor any subordinate mortgages.


Plaintiff claims that she is entitled to summary judgment by reason of the fact that the original bill of sale was filed in the incorrect place on January 18, 1957, and for the further reason that the filing of August 8,1960 was later than the filing of plaintiff’s <mask>. Defendant claims that the 1957 filing was correct and, furthermore, that plaintiff’s assignor had full knowledge of defendant’s interest under the conditional bill of sale prior to the filing of the second mortgage.


As to the compensation to be paid to petitioner, it was stated in Matter of Hurst (supra, p. 462): “ In 11 American and English Encyclopedia of Law (2d ed. p. 1287) it is written: ‘ The fact that the authority of an executor has been terminated *200by the revocation of his letters or of the probate of the will does not affect his right to compensation for services previously rendered while acting in good faith. ’ The principle is stated by Marshall, Ch. J., in Wood’s Adm’r v. Nelson’s Ex’r. (10 B. Mon. [Ky.] 231), as follows: ‘ So far as he collected and disbursed the fund for the benefit of the estate and in a manner available to it, his services were as beneficial as those of a rightful executor would have been and he is entitled to the usual compensation. ’ The record in this case shows that the administrator collected $125 interest on a <mask>. I think that he is entitled to have commissions upon that sum. In McAlpine v. Potter (126 N. Y. 285, 290) and Matter of Mason (98 id. 527, 536) such a division is approved. He is not entitled to full commissions on this sum for the reason that he has not paid it out within the meaning of the statute, for he has but transferred it to a representative in succession.”


Apparently someone has taken the advice of Dick the butcher in Shakespeare’s Henry VI, part 2 and “kill[ed] all the lawyers.”1 Nowhere in this transaction does there appear to be the participation of any lawyers. No attorney represented the claimants as borrowers. No attorney represented the lender Citibank. No attorney represented the settlement agent United. No attorney represented the prior lender MCU. The only persons present were the borrowers and a representative of United whose function was to take signatures and collect the documents. At one time a real estate transaction consisted of a deed, a note and a <mask>, took about 15 minutes to complete, and had the participation of an attorney for all parties to the transaction. The last time the court checked, we were still in the city of New York where people do not even verify the score of the Yankees game without consulting counsel, and yet, lawyers have effectively been eliminated from real estate closings involving the refinance of mortgages and secondary loans, including home equity lines of credit. One could conclude therefore that these transactions have no legal implications. That, however, would be far from the truth. The borrowing of money secured by a mortgage is often a complex transaction with serious legal implications for all of the parties involved, especially the borrowers who are pledging their home as security.


It must be admitted that the language of this will by which it is sought to limit the benefaction of the testator to a mode of discharge is not as clear and express as the words containing the gift. If such language be confined to a direction that the bequest shall be discharged by the payment of a <mask> upon the house, owned by the sister-in-law and situate in Herkimer street, it then is senseless and inefficient for any purpose. We have then a plain intention to secure the sister-in-law the benefit of $1,100, and, indeed, a bequest to her of that amount. Can this be cut down or impaired by a direction which, upon parol explana*614tion, appears as a mere confusion of words incapable of any application to the testator’s intent?


“The effective interest rate of the advance, if it is treated as a loan, is 15.46%. That interest rate is more than two and a half times the current low <mask> interest rate of 4.8% on a 20-year mortgage and approximates the interest rates on unsecured loans and credit card debt . . . Settlement L.L.C. attempts to justify the 15.46% interest rate by declaring that it is entitled to determine the rate at which it will lend money, its interest rate on this transaction falls within the range of what is pres*458ently being charged in the ‘market’ for structured settlement transfers, and Cunningham deems the interest rate acceptable. Assuming for the purposes of the argument that all three points are true, none of them is relevant to the question of whether 15.46% is ‘fair and reasonable.’ ” The court continued (at 724):


The plaintiff commenced this action in March of 1991 to foreclose on a <mask> executed by the defendants John and Marie Mione, who are husband and wife. A notice of appearance and verified answer, which included an affirmative defense of lack of proper service, was served on behalf of the defendants by Joel Silberman, Esq. Thereafter, the plaintiff moved for summary judgment and for the appointment of a Referee to compute the amount due. No opposition was interposed on behalf of the defendants. The plaintiff’s motion was granted upon default in an order dated April 21, 1992. On November 30, 1992, the Referee’s computation was confirmed and the plaintiff was granted a judgment of foreclosure and sale.


It is obvious, therefore, that the ordinary income of the corporation, the stock of which comprises the sole asset of the trusts, is $90,000 plus the additional rentals received from the Four to Ten *681Dutch street properties, and its ordinary disbursements are the $32,000 ground rent plus the interest and amortization on the <mask>. It is also apparent that, aside from the natural current depreciation on the buildings, which would affect their value even if the landlord should purchase them in 1950 or 1971, or the subtenant were to exercise its option in this regard in 1950, the stock of the company is also subject to depreciation due to the fact that if none of these possible purchases become actualities, the total value of the improvements and the sole assets of the corporations will be destroyed by 1992 in any event.


The defendant Estco, Inc., contends, however, that the conceded service upon Beatrice E. Doyle, the then committee of the incompetent and occupant of the premises, of a copy of the summons and complaint in the foreclosure action on March 29, 1951, which was admittedly less than six years after the last payment of principal and interest on April 20, 1945, tolled the Statute of Limitations and consequently the <mask> may not be discharged.


1 cannot suppose that the Legislature intended to favour, much less to give priority to, a purchaser who buys with notice of a prior unregistered <mask>, and with intention to defeat it, by taking advantage of the loches or inadvertence of the prior mortgagee. Notice supersedes registry, because it effects the same object, which is to apprize *569the purchaser of the prior incumbrance. An unregistered mortgage is valid between the mortgagor and mortgagee; and whoever takes a conveyance with intent to invalidate such security, is not a bona fide purchaser, but voluntarily aids in.defrauding the mortgagee.


On June 26, 2007, Matthew Naaze executed a note secured by a <mask> on the subject premises. RMS subsequently took assignment of the mortgage and on January 4, 2008 filed a notice of pendency and commenced a foreclosure proceeding. A final judgment was granted in favor of RMS and against Matthew Naaze on September 2, 2008. A foreclosure sale was held on July 28, 2009 by which RMS took title to the property; a referee’s deed was executed on July 30, 2009.


*318The first care of the law is the safety of the trust fund. Upon this truism depends every rule which has been made for the conduct of trustees. It has produced the obvious requirement that if trust funds be loaned on <mask>, the loan shall be secured by property sufficient under prescribed standards to secure repayment of the loan. It regards the personal wealth or character of the borrower as a secondary basis of safety only. It then proceeds to requirements which touch the forms and evidences of the investment and the legal safeguards by which it may be surrounded.


Reída Realty Corporation was organized by deceased some years prior to his death for the purpose of acquiring title to and undertaking the erection of a twelve-story loft building on premises 423-439 West Fifty-fifth street, borough of Manhattan, city of New York. At deceased’s death the land and building were valued at $865,000 and were subject to a first <mask> of $325,000. Deceased was the owner of the entire capital stock. At his death the books of the corporation carried an account in his name in which at that time was a credit balance in his favor of $128,507.75. This is the item which the executors and trustees have treated as a capital asset of the estate. By reason of their ownership of the *548entire stock of the corporation the executors and trustees controlled the board of directors of the corporation. The directors of the corporation authorized the corporation to discharge the debt by payment thereof to the executors and trustees. Payments agree-gating $103,507.75 and interest are shown in the account. Admittedly the payments in reduction of the debt were made wholly from income earned by the corporation which it derived from net rents of the building owned by it. Subsequent to the decree in the accounting the corporation paid to the trustees from the same source the sum of $25,000 remaining due on the debt when the account was settled by decree^ The total sum of $128,507.75 so paid is conceded to have been invested by the trustees and the investments carried as principal assets of the trusts. The shares of the corporation are likewise so carried.


The testimony taken in this case shows most conclusively, that there was no declared intention on the part of Watties, that the <mask> should continue. All his acts and declarations before, at, and after the sale, manifest, most unequivocally, an intention on his part to unite the titles and to extinguish the mortgage; such as purchasing of Johnson the equity of redemption; his silence at the sale, and, after sale, representing himself as absolute owner of the premises, and offering to sell them in fee. The fact of his silence at the sale, is supported by every witness who has testified, with the single exception of West, who says that he attended the sale, and after the property was put up by the Sheriff, heard Wattles publicly say, that he had a mortgage on the property executed by Johnson, for $12,000. But the testimony of West is contradicted, and I think perfectly destroyed by the witnesses examined, who were present at the time; all unimpeached, and ten in number. And how could the declaration of Wattles, in relation to this mortgage, be deemed public, even if it were made to West, when the Sheriff, and every other person present, who has been examined, heard nothing of it. In fact, it is not to be presumed, that Wattles should have made such a declaration in the presence and hearing of those witnesses, as he had before that time declared to most of them, that he had purchased the equity of redemption of Johnson.


But it is urged that unless this motion be granted the petitioners are remediless. By no means. The administrator and administratrix may disaffirm and treat as void this <mask>. (Laws 1858, chap. 314; Southard v. Benner, ut supra.) A neglect to discharge their duty in this respect may render them liable to account for the loss and liable to removal.


In 2003, Kennedy executed a Second Amended Declaration of Trust. That Amendment repeated most of the above language, with the exception of the sentence in Article II-B(2) stating what financial responsibilities Senez would have while living in the Residence. The revised language removed any obligation to pay <mask> payments and required Senez to pay only for "ordinary maintenance expenses" (as opposed to "any other expenses which may be incurred").


In Keas v. Yewell (2 Dana, 249), where the action was on a bond to have two slaves forthcoming to answer any decree in a foreclosure of a <mask> upon them, it was set up in defense that one of the slaves had run away. Plaintiff had judgment, but it was reversed, the court saying: “ The casualty by which the slave was lost is a peril incident to the very nature of such property, and therefore in contracts and covenants concerning such property that peril should never be presumed to have been intended to be guarded against unless so expressly stipulated.”


The purchase price was $16,700, of which $1,670 was paid as a deposit and the balance of $15,030 was to be paid upon the *190delivery of the deed at the closing. The contract contained the following special provision: “ The performance of the terms and conditions to be performed on the part of the purchaser are conditioned upon the purchaser securing a &. I. <mask> in the sum of $12,700.00. If the purchaser shall be unable to receive a mortgage commitment for this amount within a period of six weeks then at his option this contract may be declared null and void by giving notice in writing to the attorney for the seller, in which event the moneys deposited hereunder shall be returned to the purchaser and the rights of both parties as against the other shall be terminated and neither shall have any further right against the other ” (emphasis supplied).


B. Applicable Law “ ‘Where one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use.’ [Citation.] The right to such compensation is commonly known as a ‘Watts charge.’ [Citation.] Where the Watts rule applies, the court is ‘obligated either to order reimbursement to the community or to offer an explanation for not doing so.’ ” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 978.) “The trial court determines what is due the community ‘after taking into account all the circumstances’ relevant to the exclusive possession by one spouse.” (Id. at p. 979.) The trial court has broad discretion, based on equitable considerations, as to whether to impose Watts charges and in what amount. (See In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 318 [Epstein credits]; In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201 [review of orders dividing marital property].) C. Analysis Carol contends the court abused its discretion by imposing the full amount of Watts charges. In reaching its decision, the court considered all the circumstances: Paul incurred a monthly <mask> obligation of $12,000 based on the expectation that he would receive $20,000 per month from the community’s passive income; during the relevant time period Paul received only $40,215 from the passive income while Carol used $839,712 of community rental income to pay for her exclusive use of the community residence; and the fair market value of the community residence was based on its condition as calculated by Carol’s expert.


Neptune further argues that it is entitled to $199,633.39 in <mask> interest payments between January 5, 2010 and June 7, 2010 (exhibit 49) .21 Neptune reached its calculation in its posttrial brief by taking the interest it paid in 2010, $399,266.78 and dividing that amount by two for, “6 Months 2010 . . . January 5, 2010 - June 7, 2010.” The court agrees that Neptune is entitled to the interest payments it incurred while the project was stalled as a result of the wrongful filing of the lien. However, upon review of the mortgage interest payments included in the general ledger and the form 1098, the court finds Neptune’s calculation to be incorrect. It is noted, that the time period between January 5 and June 7 is five months, not six. Further, averaging the amount of interest by month is an inaccurate method of establishing damages as Neptune’s actual interest *664payments are included in the ledger for January through May of 2010 and they total $146,401.01 (exhibit 49). Accordingly plaintiff is entitled to recovery of $146,401.01 for mortgage interest.


The first question which arises is, Would the bank or Mr. Levy *826be bound by any order or decree made by this court in a proceeding to which they had not been made parties and of which they did not have proper and legal notice. It seems fundamental and elementary that they would not. This <mask> held by Mr. Levy as security for this indorsement was satisfied and canceled over two years ago, and he might reasonably object at this time to the substitution of another to the position of the bank in the latter part of September, 1931, as to this note upon which he was then liable. He could have had the note collected at that time or since then, :if he believed he should in order to protect himself, and could have enforced his rights against the other parties on this note and the security he held. Other questions may arise. At any rate he is not a party to this proceeding. At least he has the right to be heard if he so desires.


Motion granted to the extent of directing payment of the claimed <mask> balance plus interest thereon at the rate of 4%% from April 1, 1960 to the date of vesting of title and at the rate of 4% from the date of vesting of title to December 24, 1960, on so much of the advance payment as is in the ratio of the claimed mortgage balance to the whole award and to September 24, 1962 on so much of the remainder of the award, not available in advance, as is in the ratio of the mortgage balance to the whole award. Settle order, approved as to form by the Corporation Counsel, in terms of the specific amounts of principal and interest computed according to the foregoing ratios.


“Prepayment Fee. “(a) Any tender of payment by Borrower or any other person or entity of the Secured Indebtedness, other than as expressly provided in the Loan Documents, shall constitute a prohibited prepayment. If a prepayment of all or any part of the Secured Indebtedness is made following (i) an Event of Default and an acceleration of the Maturity Date, (ii) the application of money to the principal of the Loan after a casualty or condemnation, or (iii) in connection with a purchase of the Property or a repayment of the Secured Indebtedness at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property, then to compensate Holder for the loss of the investment, Borrower shall pay an amount equal to the Prepayment Fee.” (Current Issues Concerning <mask> Prepayment, 478 PLI/Real 871, 923-924, Appendix D [emphasis supplied].) This clause is included in its entirety as an example drafted to clearly state the parties’ intent that liquidated damages in an amount equal to the prepayment fee are enforceable in connection with premature payment by anyone and at any time after acceleration. Notable is the use of language indicating “repayment” rather than “prepayment” of the secured indebtedness “at any time before, during or after, a judicial or non-judicial foreclosure or sale of the Property.” Such clause is clearly *989intended to be enforced in a foreclosure proceeding and is not limited to “prepayment” situations after acceleration, as is the one at issue.


In the interim, the adjuster ascertained that one, Mary Raimundo, had an interest in the property. He communicated that information to Messrs. Fenner and Gravitz. Several talks were had between them which resulted in an agreement to settle the loss for $6,000 upon the receipt of appropriate documents. These documents, namely, a proof of loss, a fire policy, copy of a <mask>, letters of administration, and a request that ‘ ‘ check be made out to mortgagee only” were forwarded to the defendant on May 5,1960.


The next point of the defendants is, that the trustees had no right to sell the building without authority from the court. The building which was sold was an old church which had been removed from its foundation and placed on rollers in order that it might be taken from the lot. A new edifice had been built upon the old foundation. The old building had thus been .severed from the *444realty, and might, like other personal property, be sold by the trustees. The next objection is, that the agreement on which the action is brought is void by the statute of frauds, because it is an agreement by the defendant to buy the land of the plaintiffs, and they did not sign it. This is not the meaning of the agreement. The plaintiffs did not own or agree to sell the land in question. There was a good consideration for the agreement; and for this good consideration the defendant agreed that, in a certain contingency, he would pay for the property a certain sum. The defendant desired the plaintiffs to take a second <mask>, which he held on a piece of land, in exchange for their old building. The value of the mortgaged property was, to some extent, in the building upon it. And the plaintiffs washed to be sure that, when the mortgage became due, the property would sell for enough to pay off the mortgage. It might not do so if the building should previously be burned. And, therefore, the defendant, as a consideration of .the exchange, agreed, in ease of such burning, to pay for the property enough to satisfy all liens. This was uot a contract to sell lands. No one assumed to agree to sell the land to defendant. Only he agreed that he would pay so much for it ; and the consideration for this agreement was the acceptance by plaintiffs of the mortgage in exchange for the building. Tbe defendant’s agreement was similar to a guarantee, that on a foreclosure sale a guarantor will bid a certain amount.


Under all the circumstances of the case, I am unable to divest my mind of the belief that the whole transaction was tainted with fraud towards the creditors of Green; and even viewing the matter in the mqst favorable light, and supposing that the acts of the appellant, Bailey, were not intended to deceive or defraud, there cannot rest a doubt on any mind, as it appears to me, that the acts and intentions of Green were fraudulent, and therefore that the <mask> is void as to the respondents. I am therefore of opinion that the decree of the chancellor should be affirmed.


The certificates provide for the payment of the amount for which issued by the Title and <mask> Guarantee Company ten years after the date of each certificate, and give to the holder the right to require payment after three years, “ out of any moneys received *358by the company in payment of the deposited bonds and mortgages after the receipt of such notice by the Company and after the payment of any certificates of this issue in respect of which the Company shall previously have received notices requiring payment; and the Company agrees to pay such principal and interest accordingly.” “ All certificates shall be payable in the order in which such notices shall be received and registered by the Company.”


The next decision, in chronological order, is Matter of Marshall (43 Misc. 238), decided by Surrogate Silkman of Westchester county in 1904. Two properties presenting problems of the variety here under consideration were there present. In June, 1872, the executors invested $15,000 in a <mask> on unimproved real property. Interest was paid to June 1,1878, when default occurred. In December, 1879, the executors acquired title through foreclosure proceedings, holding the premises until May, 1903, at which time they were sold for a net sum of $54,500. Costs of foreclosure and all carying charges, amounting to an aggregate of $16,174.33, were paid out of principal. The second property was a $3,000 bond secured by mortgage, upon which interest was paid to December 1, 1874, when default was made. The executors took title through foreclosure on February 15, 1875. It was carried by them until June 9, 1899, when it was sold for a net sum of $9,405. Here also the costs of carrying the property, including taxes and foreclosure and other expenses, were paid out of principal.


From this order there is an appeal which presents a very serious obstacle in the way of the plaintiff. It has been seen by the statement already made that the judgment of the Supreme Court was not entirely reversed, but only that portion of it which denied to the plaintiff substitution to the place and rights of Mackin and Yerplank. The Court of Appeals held and decided that as to them the plaintiff was a junior incumbrancer and possessed all the rights incident to that relation; that she was entitled to the securities of the senior incumbrancer, and should be permitted to redeem the <mask> and acquire all the rights of the holders. The law of the case, therefore, is settled by the Court of Appeals and cannot be unfixed by any action of this court. The Supreme Court is without power to reverse the judgment of the Court of Appeals. Neither can it nullify the decisions of that court by setting aside its judgments entered on its remittitur in the Supreme Court. Because, if that could be done, then the Supreme Court would be in possession of the power to control all the judgments and decisions of the Court of Appeals. For this, of course, the respondent does’ not contend, and yet the argument put forward in her behalf, if followed to its logical conclusion, leads to that result. Doubtless the judgments of the Court of Appeals, after they become the judgments of the Supreme Court, may be opened and modified by this court in furtherance of justice in many ways, but they cannot be swept entirely aside.


*476There is no doubt where the equity lies in this situation. These mechanics’ lienors have put their labor, material and services into the premises which have now been sold in this <mask> foreclosure action. Their labors and materials have enhanced the value of the premises and have undoubtedly made it possible for a surplus to exist. Opposing their claims, we find the'United States which has chosen to designate the former owner of the premises as its agent for the collection of income taxes imposed by the Federal Government; it now finds that the agent so chosen was unworthy or incapable of the trust imposed and so seeks to recoup its losses at the expense of these mechanics’ lienors without prior notice to them of its claim.


The defendants contend that the purchase of the said insurance policy was a condition to obtaining the loan; that the monthly premium of $58.50 paid thereon was additional interest and that the whole transaction was, therefore, usurious; that the insurance policy was not taken out on the life of the owner of the property, Madalene T. Kerpel, but on the life of Julius Kerpel, her husband; that they never consented to the purchase of the paid-up term insurance and that it was merely a means by which plaintiff retained the surrender value of the policy as additional interest; that the purchase of the insurance policy was part of a single transaction and that the premiums in payment therefor were included in the terms of the bond and <mask> as additional interest and that all these factors are proof that the whole transaction was usurious.


“Ninth: I give and bequeath to my brother Roscoe E. Jones, the balance unpaid upon the <mask> which I now hold upon the apartment at Lapham Street and Lake Avenue in the City of Rochester, Monroe County, New York. In the event of my brother not making a disposition of this mortgage during his lifetime, then, and in that event, I give and bequeath to my nephew, Irving D. Jones, the balance unpaid upon said mortgage at the time of the death of my brother, Roscoe E. J ones. It is my intention that my brother, Roscoe E. J ones, shall have the right to collect, sell or dispose of said mortgage without limitation and that he shall have the proceeds for his own separate use.”


Defendant has correctly emphasized that the alleged errors in disclosure are of various kinds (e.g., overdisclosure of annual percentage rates and legal fees in some instances and underdisclosure in others as well as improper calculations involving <mask> insurance premiums which may be applicable to FHA, VA or conventional mortgages) and that each type of purported error or omission may be subject to a wholly different and complex defense. However, this argument concerns proof to be offered at the time of trial and has no efficacy in displacing the commonality of issues set forth by the plaintiffs. Neither is the fact that a proposed defense is circumstantial or complex sufficient to divest the class action of superiority (Professional Adj. Systems of Amer. v General Adj. Bur., 64 FRD 35).


Following the fire, plaintiff notified defendant insurance company and filed proof of loss dated January 13, 1993. On this proof of loss, plaintiff indicated that, since the time of the issuance of the policy, there had been no change in the use, occupancy, or possession of the property; that the property was maintained at the time of the loss for the uses contemplated by the policy; and that there were no mortgages upon the property. Investigation revealed that plaintiff had not been residing in the premises at the time of the loss and that there was in fact a <mask> on the property in the amount of $8,444.26.


It is, therefore, apparent that defendant is unable to establish a valid defense to the payment of the note and <mask> or to establish its affirmative defense and counterclaim for a declaratory judgment for rescission and damages or to provide evidentiary facts sufficient to raise genuine triable issues of fact herein. (See Chemical Bank v Econ, 87 AD2d 706, appeal dismissed 57 NY2d 604; Frank Corp. v Federal Ins. Co., 70 NY2d 966.) Accordingly, the court dismisses the defendant’s answer with affirmative defense and counterclaim; and summary judgment is granted in favor of the plaintiff against the defendant for the amount demanded in the complaint. The court hereby ratifies and confirms the report of Referee.


William Weisman, as an affirmative defepse ;n Action Np. 1 and as a third cause of action in Action No. 2, asserts and seeks to foreclose a lien agaipst the premises, wftiph lien he claims is or may be a prior lien to the first <mask> on the premises. The alleged Rep for $5,400 arises opt of a purely gratuitous payment of taxes on the premises. Payment was made to the Treasurer of Ulster County, a defendant ip the second action, who has appeared and answered.


For the first factor, "we ask whether the regulation 'unreasonably impair[s] the value or use of [the] property' in view of the owners' general use of their property." ( Allegretti, supra , 138 Cal.App.4th at p. 1278, 42 Cal.Rptr.3d 122.) In this case, the evidence suggests that the City Council's decision had an adverse economic *285impact on the Bottinis. For example, the evidence shows that the Bottinis have had to pay a <mask> for both their existing home and an empty lot-at an additional cost of several thousand dollars per month-as a result of the construction delay caused by the City Council's erroneous resolution granting the CEQA appeals. Further, it is doubtful that the Bottinis could have made an alternative use of the property during the period in which they sought to overturn the City Council's decision, given that the lot is zoned exclusively for residential purposes. Thus, the economic impact factor weighs in favor of the Bottinis.


Again (at p. 8): “ The assignment passed title to the bond and <mask> as against Mr. Lilly, his representatives and the mortgagor as well as all other persons who were not affected by reason of an absence of the record of the same. A delivery of the bond and mortgage to defendant was not essential to vest title to the same in defendant. Neither was she required to assert ownership of the same by demanding possession thereof from plaintiffs.”


Thomas F. Whelan, J. Ordered that this motion (No. 001) by the plaintiff for the entry of a default judgment on its complaint seeking a declaration that it owns a certain <mask>, that defendants’ rights and interests under the mortgage, if any, are subordinate to those of the plaintiff and for an order and judgment directing the County Clerk to record a copy of said mortgage, nunc pro tunc, as of May 8, 2006, is considered under CPLR 3215 and RPAPL article 15 and is granted to the extent set forth below.


Nor is it absolutely certain, although, of course, extremely probable, that there would have been a deficiency in case the mortgaged property had been sold under the plaintiff's judgment. Still less certain is it as to the amount of such deficiency. The sale would have taken place at a different time and under different circumstances from the sale on the first <mask>. Be that as it may, the plaintiff had an ample opportunity to ascertain the deficiency in the regular and ordinary way and to enter his judgment thereon in the manner provided by law. Having failed to do this, he cannot now come in and on motion ask the court to adjudge that a deficiency of the entire amount of his bond and interest must necessarily have resulted from a sale of the mortgaged property under his judgment. This is asking the court to decree a deficiency which, in fact, does not exist, and which, owing.to.the- course pursued by the plaintiff, cannot now be ascertained in the-manner required by law'. " •


With regard to the failure to give “ prompt notice ” of the making of the <mask> participation certificate to the adult life beneficiary as required by section 188, subdivision 7, of the Banking Law, the accountant trustee offered no evidence of giving the notice required. The life beneficiary testified that he never received notice. This court, in Matter of Peene (155 Misc. 155), on a similar lack of prompt notice, decided that prompt notice was one of the elements required by the law to create a legal mortgage participation certificate. This additional ground sustains the surcharge in the amount of $8,000.


It is contended by the appellants’ counsel that notwithstanding parol evidence is, in general, admissible to show the actual consideration, although it be different from that expressed in the deed, the rule is limited to cases where the inquiry is material to an action between the parties to the deed. It is not necessary to decide that point in the present case, for the reason that if any error was committed'at the trial in receiving the evidence, it was merely as to the order of proof. The plaintiff offered the evidence before he rested. It was not then material or necessary to his case, and if nothing had occurred subsequently to make it material, the reception of it probably would have been erroneous. The plaintiff having proved his bond and <mask>, was entitled prima facie to the relief demanded in his complaint without further proof. The burden of impeaching the consideration expressed in the mortgage and of showing fraud was on the defendant. For that purpose the defendant had a right to give parol proof of a different consideration from that expressed, and in fact he gave evidence to that effect. To that evidence it was competent for the plaintiff to reply, on the issue of fraud, and to give his version of the true consideration. All the evidence given by the plaintiff upon the subject, against the defendants’ objection, was material and admissible for that *560purpose, and if it had been offered after the defendant had opened the door to that inquiry, it would have been entirely unobjectionable. It is obvious that the defendant was not prejudiced by’the reception of the evidence before he took the case, as he was thereby advised of the strength of the plaintiff’s proof on that issue before he entered on his own.


Whatever may have been the rights of the savings bank if it or its attorney had acted on the order and received the bond and <mask> within the ten days after the order was made, we think that after knowing that the ten days had expired before it had acted on the order it could not set it up as a valid and existing order, without an application to the court, founded on some good reasons, and a notice to the plaintiffs, to allow the order to be entered nunc pro tunc ; and, therefore, we think that the order appealed from, so far as it preserves the priority of the savings bank mortgage for $1,000 over the plaintiffs’ judgment, was erroneous.