(dissenting). Plaintiffs instituted this action to foreclose a mortgage. Defendant defaulted and a judgment of foreclosure was entered. Later defendant, discovering that the property was about to be taken by the city in condemnation, moved to open the default. The motion was granted. No terms were imposed except that the judgment was allowed to “ stand as security.” Thereafter defendant moved to vacate the judgment. After first granting the motion, Special Term on reargument reinstated so much of the judgment as applied to costs. There were further maneuvers as to the items of costs allowed and these have been determined.
I fail to see on the state of the record how plaintiffs are entitled to costs. Once the default was opened and defendant given permission to answer, the action stood in the position in which it did when instituted, that is, that plaintiffs had asserted a right to foreclose, which right had not been in any way deter*231mined. Of course, Special Term could have imposed any reasonable condition upon granting relief, such as the payment of costs, as it deemed advisable. But no such condition was imposed. Allowing the judgment to stand as security was entirely ineffectual. All that could be accomplished thereby was to place a lien on the property pending the outcome of the action. Concededly, due to the property being taken in eminent domain, no judgment could be enforced. Whether plaintiffs would have been entitled to foreclose has never been determined, and now never will be. As plaintiffs ’ right to costs depends on their right to foreclose, this also has been lost.
It may be conceded that the equities are all with plaintiffs. They started the action in good faith and it is apparent that it was not going to be defended until news of the proposed condemnation came to defendant. But nevertheless the default was opened without any provision for costs, and the court is powerless to correct the situation.
I believe the majority regards the order on appeal as a grant upon terms such as might have been imposed on the application to open the default and, hence, proper. The diEculty with that solution is that the operative provisions of the judgment must now be vacated, as they have been. This is not a matter of favor to defendant which can be granted upon terms. Actually, it only serves to correct the record to conform to what has developed. And as there can be no judgment, there can be no adjudication that plaintiffs are entitled to the relief they sought.
The order should be reversed and defendant’s motion granted, but without costs.
Botein, P. J., Rabin, McNally and Stevens, JJ., concur in Per Guriam opinion; Steuer, J., dissents in opinion.
Order, entered on July 27, 1964, so far as appealed from, aErmed, with $30 costs and disbursements to respondents.