The only question litigated between the parties to this appeal was that of the relative priority of the mortgage lien of plaintiffs and the mechanic’s lien of appellant, the Jackson Architectural Iron-Works. The mortgage was executed to the plaintiffs to secure future advances to the extent of $55,000, to be paid in installments, under a building loan agreement between the plaintiffs and the mortgagors. On September 25, 1888, when the plaintiffs had advanced upon their mortgage $40,037.34, the Jackson Architectural Iron-Works filed a notice of their lien in the office of the clerk of the city and county of Hew York. Plaintiffs, availing themselves of their right to do so under the building loan agreement above,mentioned, because of the filing of said notice of lien, refused to make additional advances. Thereupon an agreement was entered into between plaintiffs, the mortgagors, and the Jackson Architectural Iron-Works, by which plaintiffs agreed to make further' advances, and the appellants agreed to subordinate their lien to such advances. This agreement was entered into in Hovember, 1888. On April 3, 1889, a further agreement was entered into, among the same parties, pursuant to which the lien of the Jackson Architectural Iron-Works was still further subordinated to advances which plaintiffs agreed to make upon a second mortgage. Upon the hearing before the referee no conflict of evidence appeared, the ease being disposed of upon the testimony of plaintiff Lipman, and documentary evidence consisting of the three agreements hereinbefore mentioned; and the question of priority determined by the referee rested exclusively on the construction of these agreements. The opinion of the referee which forms a part of the record before us refers to each of these agreements, and a careful examination of them convinces us that the learned referee has not misapprehended their effect, and that no error was committed in his construction thereof. Accepting the construction as made by the referee, his report, and the findings and conclusions stated therein, are fully supported by the evidence, and the exceptions thereto furnish no ground for reversal. The judgment appealed from should be affirmed, with costs.
Daly, C. J., concurs.