On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Lora, Antell and Pressler. The opinion of the court was delivered by Lora, P.J.A.D.
On January 23, 1969 defendant Thomas Granatell borrowed $275,000 from Newram Realty Corp. (Newram), secured by a bond and mortgage covering property in the City of Newburgh, Orange County, New York. Newram assigned the bond and mortgage to plaintiff Sol J. Light.
In June 1974, at Granatell's request, the parties entered into an extension agreement which provided, among other things, for the monthly amortization of the balance outstanding on the bond over five years at a rate of interest of 8% annually. The extension agreement was executed in New Jersey, where both Light and Granatell were then residents.
The first installment payment became due on July 1, 1974, but Granatell did not, however, make the payment and has not made any of the succeeding installment payments. Light thereupon elected to accelerate the maturity of the debt pursuant to an applicable provision of the extension agreement.
During his ownership of the property Granatell failed to pay the City of Newburgh real estate taxes and water charges, said arrearages being then in excess of $300,000. The City of Newburgh perfected its priority lien against Granatell's property. Although Light had instituted foreclosure proceedings on the mortgage in New York, the City of Newburgh on December 30, 1976 foreclosed its tax lien and thereby extinguished Light's mortgage lien on the property. Light thereafter commenced this action on the bond in New Jersey, and on motion for summary judgment and cross-motion for dismissal of the complaint, the trial judge entered judgment for plaintiff from which defendant now appeals.
Defendant contends that Article 13 of the New York Real Property Actions and Proceedings Law, § 1301 (RPAPL), is controlling and principles of comity bar the plaintiff from maintaining this action. The cited section provides:
1. Where final judgment for the plaintiff has been rendered in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued upon the judgment to the sheriff of the county where he resides, if he resides within the state, or if he resides without the state, to the sheriff of the county where the judgment-roll is filed; and has been returned wholly or partly unsatisfied.
2. The complaint shall state whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been collected.
3. While the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.
Although it is admitted by defendant that Newburgh has foreclosed its tax lien on the subject ...