If it had been the intention of the parties to limit the advances to the value of the equity of redemption, they would have filed the statement provided by section 256 of the Tax Law showing such limit. The absence of such statement indicates that the amount to be advanced was not limited to the then value of the equity of redemption.
This mortgage was apparently made to cover the uncertainties of the future and with the idea that financial difficulties might arise, and to protect the parties against all possibilities. It was not apparent when the stringency and trouble in the financial world then threatening might strike, or when the advances under the mortgage would begin or end. It was quite possible that the prior mortgage might be paid before any advances were made upon this mortgage, or during the time that advances were being made. Evidently this mortgage was intended as a continuing security for advances which might be made from time to time during its existence.
The tax is not upon the real estate but upon the debt or obligation secured by the mortgage. (§§ 253, 256.) If the mortgage fails to show the amount of the debt or obligation secured, the value of the mortgaged' property is made the measure for computing the tax.
I think that within section 256 of the Tax Law the prior mortgage is not to be deducted in assessing the value of this mortgage. The property secured by the mortgage was the Park Row Building and No. 3 Park Row, worth $3,660,000, owned by the mortgagor. The judgment and pleasure of the mortgagees, from time to time, was the only limit contemplated by the mortgage on the amount which might be advanced upon and secured by it. Undoubtedly in making the advances, they would from time to time be interested in knowing whether the first mortgage remained a lien upon the property. If the first mortgage was discharged they would undoubtedly consider the land as a security for a much larger sum than the value of the equity of redemption at the time the mortgage was made.
I favor an affirmance.
All concurred, except Woodward, J., who dissented, with opinion, in which Sewell, J., concurred.