(dissenting). Plaintiff had judgment against defendant Brady and one Van Wormer for deficiency on mortgage foreclosure, amounting to $2,148.19. It was docketed in the Albany county clerk’s office January 10, 1918. The plaintiff applied on notice at Special Term December 18, 1926, for leave to issue execution, more than five years having elapsed since the entry of said judgment. The application for leave was made only as to defendant Brady, the defendant Van Wormer having been released. The application was resisted by Brady, but the order was granted and this appeal was taken.
The facts out of which the controversy arose are as follows: The property was conveyed to Brady October 2, 1911, by plaintiff’s testator, and mortgage was given by Brady for a portion of the purchase price. On April 1, 1915, Brady conveyed the property to Van Wormer, who assumed and agreed to pay the mortgage. *408Thereafter the mortgage was foreclosed. The plaintiff purchased the property on the foreclosure sale and entered a judgment for deficiency against both Brady and Van Wormer, who were made defendants. On March 31, 1923, the plaintiff conveyed the property to Van Wormer, at the same time releasing Van Wormer from the deficiency judgment and taking a new mortgage to secure a part of the purchase price. Subsequently this mortgage was assigned to the father of Van Wormer, although that fact does not seem to be material.
The assumption of the mortgage by Van Wormer did not affect the liability of Brady to the mortgagee. He could have sued Brady on the bond. (Marshall v. Davies, 78 N. Y. 414; Schenectady Savings Bank v. Ashton, 205 App. Div. 781.) By his agreement to pay Van Wormer became personally liable to the mortgagee. As to the latter it was not an agreement of suretyship but a primary obligation. (Cashman v. Henry, 75 N. Y. 103; Gifford v. Father Matthew T. A. B. Soc., 104 id. 139.) Instead of one party there were now two primarily liable. ' The mortgagee could have sued one or both in foreclosure. As between the original mortgagor and his grantee, the relation of principal and surety existed under the contract made between themselves. (Wager v. Link, 134 N. Y. 122.)
Whatever rights Brady had as against Van Wormer they could not affect the right of the mortgagee to recover his debt. (Marshall v. Davies, supra, 421.) At any time he could have paid his own debt and become subrogated to the rights of the mortgagee. (Marsh v. Pike, 10 Paige, 595.) The judgment for deficiency against both placed them as to the mortgagee in the position of joint judgment debtors. Whatever the rule of liability between parties after judgment may be on judgments recovered on promissory notes where liability is fixed by statute (Neg. Inst. Law, §§ 3, 118), or on a contract of suretyship made with the obligee, I am not aware of any authority that compels a mortgagee to collect from only one of two debtors primarily liable on a deficiency judgment, or to assign his judgment to one claiming rights under collateral agreement with another.
The doctrine in this State is that a judgment creditor may release one of two judgment debtors and enforce his obligation against the other if in the release there is a reservation of such right. (Marx v. Jones, 36 Hun, 290; Irvine v. Millbank, 36 N. Y. Super. Ct. [4 J.& S.] 264; affd., 56 N. Y. 635; Mecum v. Becker, 164 App. Div. 852; affd., 215 N. Y. 691; Whittemore v. Judd Linseed & Sperm Oil Co., 124 id. 565. See, also, 7 Halsbury’s Laws of England, 455.) After the release of Van Wormer, Brady was in no different *409position than as though the mortgagee had failed to join Van Wormer as a party but had foreclosed the mortgage against him alone.
To my mind the only difficulty presented in this case is the failure of the plaintiff to state definitely that there was such reservation in the release. Nothing is said on the subject in the opposing affidavit of Brady. It does appear in the moving affidavit that the judgment remains wholly unpaid. As a judgment is usually discharged only by the payment of money or some valuable consideration, we may infer that the release was not a general discharge. If such was not the fact, the defendant should have the right to move to reopen the order.
In any event, if Brady is compelled to pay the judgment he has a remedy against Van Wormer by subrogation or on the latter’s covenant to pay the mortgage. (Comstock v. Drohan, 71 N. Y. 9; Hyde v. Miller, 45 App. Div. 396; affd., 168 N. Y. 590; Gifford v. Father Matthew T. A. B. Soc., supra, 142.)
I dissent and vote for affirmance.
Order reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.