In September, 1871, Palmer, the defendant, and one Doran, agreed with Charles Halsted, in consideration that said Halsted would furnish $8,000 in building materials, to pay half cash and half “ in a first mortgage on one of the thirteen houses now being erected by the said Doran.” The materials were furnished, the houses were built, and on or about the first of Hay, 1872, Palmer, who owned the fee of the land, defivered to Halsted a mortgage for $4,240, being for said half payment, with six per cent added to the cash value of said materials, “as caHed for by the agreement.” This mortgage was not acknowledged nor attested by a subscribing witness. On the 19th of June, 1872, William Wilson, one of the defendants, filed a notice estabfishing a Hen on aH the houses and lots, under chapter 478, Laws of 1862. On the 24th of June, 1872, Halsted procured Palmer and wife to acknowledge the mortgage, and recorded it on the 9th of August, 1872, in Kings county. On the 21st of September, 1872, Halsted, fearing that the six per cent added to the cash value of the goods might be held usurious, applied to Palmer to give a new mortgage, omitting the six per cent. This was done on that day. This' mortgage has been assigned to plaintiff and a foreclosure action brought thereon.
The question is as to the priority of Hen between the plaintiff and Wilson. Halsted has an equal right to payment in equity ; he sold goods which not only went into the premises in question, but *305also those which went into the remaining houses on which Wilson has an undoubted lien. By the agreement, he would have an absolute right to the mortgage if the particular house and lot had been designated. By the mortgage delivered before Wilson’s lien was filed, it was designated. If a mortgage is a “ grant in fee or of a. freehold estate,” under 1 Bevised Statutes, 738, it was good between the parties. (Wood v. Chapin,, 13 N. Y., 509.) The lien law only establishes such Hen to the extent of the right, title and interest of the owner at the date of fifing the notice of lien. Halsted, then, had a right, as against Palmer, to a mortgage on this property, enforceable in equity as a specific lien thereon. (Matter of Howe, 1 Paige, 125; Dwight v. Newell, 3 N. Y., 185.) Such a lien would take precedence over all subsequently acquired judgments.
I think Halsted lost no right by the change of the mortgages ; both were set up in the complaint, and no usury was either proven or claimed upon the trial. The giving of the second mortgage did not pay the first, and was not intended to pay it. There was no intention to change its priority. Halsted was ignorant of the intervening lien. Wilson has lost nothing by the cancellation of the first mortgage. Equity has power to give the substituted mortgage priority for the purpose of justice. (Bazmes v. Camaek, 1 Barb., 392.) I think the judgment ought to be affirmed, with costs.
Gilbert, J., concurred. Present —• Barnard, P. J., Gilbert and Dykman, JJ.Judgment affirmed, with costs.