(concurring) :
I concur in the result, on the ground that this action should be treated as an action to redeem, triable as such. If it appears upon the trial of the action that the defendant has so disposed of the property as to make a redemption impossible the court would be authorized to compel the defendant to account for the value of the property at the time of the trial. I do not think, upon this complaint, that the action can be sustained as an action at law, but facts alleged having entitled the plaintiff to redeem it was the duty of the Trial Term to have sent the action to Special Term for trial as an action in equity. In Mooney v. Byrne (1 App. Div. 316, 320) it was held by this court that if the mortgagee had sold the property an action to redeem could not he maintained. That was reversed by the Court of Appeals (163 N. Y. 86, revg. 15 App. Div. 624) where it was held that the conveyance did not affect the right of the mortgagee to redeem and that that was a proper remedy. The same doctrine was applied by Judge Raeallo in Meehan v. Forrester (52 N. Y. 277) where it was held that the mortgagor was bound to account to the mortgagee for the value of the land at the time plaintiff’s right to such reparation was established. I think these cases hold that an action to recover damages was not maintainable and that the remedy of a mortgagee 'under these circumstances was an action to redeem.
I, therefore, concur in the reversal of this judgment.
t
MoLaughlin, Laughlin, Clarke and Scott, JJ., concurred.
Judgment reversed and new trial ordered, costs to appellant to abide event. •