NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
FORECLOSURE OF MORTGAGE BY ADVERTISEMENT
Section 1401. When mortgage may be foreclosed.
1402. Notice of sale; how given.
1403. Notice of sale; how served.
1404. Duty of county clerk.
1405. Contents of notice of sale.
1406. Sale; how postponed.
1407. Sale; how conducted.
1408. Mortgagee or successor in interest
1411. Effect of sale.
1421. Affidavits on sale.
1422. When one affidavit suffices;
printed notice to be annexed.
1423. Affidavits may be filed and recorded.
1424. Note upon record of mortgage.
1425. Deed not necessary; when affidavits
not necessary; but purchaser may require
1431. Costs allowed.
1432. Expenses allowed.
1433. Taxation of costs and expenses.
1441. Surplus money to be paid into supreme court.
1442. Petition for surplus.
1443. Proceedings on petition.
1444. Order for distribution.
1445. Limitation of sections relating to
1451. Delivery of certain affidavits to purchaser.
1461. Application of this article to
mortgages of the state.
Sec. 1401. WHEN MORTGAGE MAY BE FORECLOSED.
A mortgage upon real property situated within the state,
containing therein a power to the mortgagee, or any other person,
to sell the mortgaged property, upon default being made in a
condition of the mortgage, may be foreclosed in the manner
prescribed in this article, where the following requisites
1. Default has been made in a condition of the mortgage,
whereby the power to sell has become operative.
2. An action has not been brought to recover the debt secured
by the mortgage, or any part thereof; or, if such an action
has been brought, it has been discontinued, or final
judgment has been rendered therein against the plaintiff, or
an execution, issued upon a judgment rendered therein in
favor of the plaintiff has been returned wholly or partly
3. The mortgage has been recorded in the proper book for
recording mortgages, in the county wherein the property is
4. The first notice required by subdivision 1 of section 1402
is published within the time in which an action could be
maintained to foreclose such mortgage.
Sec. 1402. NOTICE OF SALE; HOW GIVEN.
The person entitled to execute the power of sale must give notice
in the following manner, that the mortgage will be foreclosed by
a sale of the mortgaged property, or a part thereof, at a time
and place specified in the notice:
1. A copy of the notice must be published, at least once in
each of the twelve weeks immediately preceding the day of
sale, in a newspaper published in the county or in a
municipal corporation a part of which is within the county
in which the property to be sold, or a part thereof, is
2. A copy of the notice must be fastened up, at least eighty-
four days before the day of sale, in a conspicuous place, at
or near the entrance of the building where the county court
of each county, wherein the property to be sold is situated,
is directed to be held; or, if there are two or more such
buildings in the same county, then in a like place at or
near the entrance of the building nearest to the property;
or, within any county in the city of New York, in a like
place at or near the entrance of the building where the
trial and special terms of the supreme court are directed by
law to be held.
3. A copy of the notice must be delivered, at least eighty-four
days before the day of sale, to the clerk of each county
wherein the mortgaged property, or any part thereof, is
4. A copy of the notice must be served, as prescribed in
section 1403, upon the mortgagor, or, if he is dead, upon
his executor or administrator, if an executor or
administrator has been appointed, and also upon his heirs,
providing he died the owner of the mortgaged premises. A
copy of the notice may also be served in like manner upon a
subsequent grantee or mortgagee of the property whose
conveyance was recorded, in the proper office for recording
it in the county, at the time of the first publication of
the notice of sale; upon the wife or widow of the mortgagor,
and the wife or widow of each subsequent grantee whose
conveyance was so recorded, then having an inchoate or
vested right of dower, or an estate in dower, subordinate to
the lien of the mortgagee; or in the event of the death of
the subsequent grantee, who was at the time of his death the
owner of the mortgaged premises, then upon his heirs or upon
any person then having a lien upon the property, subsequent
to the mortgage, by virtue of a judgment or decree duly
docketed in the county clerk's office and constituting a
specific or general lien upon the property. The notice
specified in this section must be subscribed by the person
entitled to execute the power of sale, unless his name
distinctly appears in the body of the notice, in which case
it may be subscribed by his attorney or agent.
Sec. 1403. NOTICE OF SALE; HOW SERVED.
Service of notice of the sale, as prescribed in subdivision 4 of
section 1402 must be made as follows:
1. Upon the mortgagor, his wife, widow, executor, or
administrator, or a subsequent grantee of the property,
whose conveyance is upon record, or his wife or widow, by
delivering a copy of the notice, as prescribed by law for
delivery of a copy of a summons in a civil action in a court
of record, in order to make personal service thereof upon
the person to be served, or by leaving a copy of such
notice, addressed to the person to be served, at his
dwelling-house, with a person of suitable age and
discretion, at least fourteen days before the day of sale.
If said mortgagor is a foreign corporation, or being a
natural person, he, or his wife, widow, executor or
administrator, or a subsequent grantee of the property whose
conveyance is upon record, or his wife or widow, is not a
resident of or within the state, then service thereof may be
made upon them in like manner without the state, at least
twenty-eight days prior to the day of sale.
2. Upon any other person, either in the same method, or by
depositing a copy of the notice in the post-office, properly
inclosed in a postpaid wrapper, directed to the person to be
served, at his place of residence, at least twenty-eight
days before the day of sale.
Sec. 1404. Duty of county clerk.
A county clerk, to whom a copy of a notice of sale is delivered
as prescribed in subdivision 3 of section 1402, must forthwith
affix it in a book kept in his office for that purpose; must make
and subscribe a minute, at the bottom of the copy, of the time
when he received and affixed it; and must index the notice to the
name of the mortgagor.
Sec. 1405. CONTENTS OF NOTICE OF SALE.
The notice of sale must specify:
1. The names of the mortgagor, of the mortgagee, and of each
assignee of the mortgage.
2. The date of the mortgage, and the time when, and the place
where, it is recorded.
3. The sum claimed to be due upon the mortgage, at the time of
the first publication of the notice; and, if any sum secured
by the mortgage is not then due, the amount to become due
4. A description of the mortgaged property, conforming
substantially to that contained in the mortgage.
Sec. 1406. SALE; HOW POSTPONED.
The sale may be postponed from time to time. In that case a
notice of the postponement must be published, as soon as
practicable thereafter, in the newspaper in which the original
notice was published, and the publication of the original notice,
and of each notice of postponement, must be continued at least
once in each week, until the time to which the sale is finally
Sec. 1407. SALE; HOW CONDUCTED.
The sale must be at public auction, in the day-time, on a day
other than Sunday or a public holiday, in a county in which the
mortgaged property, or a part thereof, is situated; except that,
where the mortgage is to the people of the state the sale may be
made at the Capitol. If the property consists of two or more
distinct farms, tracts, or lots, they must be sold separately;
and as many only of the distinct farms, tracts, or lots, shall be
sold, as it is necessary to sell, in order to satisfy the amount
due at the time of the sale, and the costs and expenses allowed
by law. But where two or more buildings are situated upon the
same city lot, and access to one is obtained through the other,
they must be sold together.
Sec. 1408. MORTGAGEE OR SUCCESSOR IN INTEREST MAY PURCHASE.
The mortgagee, or his assignee, or the legal representative of
either, may, fairly and in good faith, purchase the mortgaged
property, or any part thereof, at the sale.
Sec. 1411. EFFECT OF SALE.
A sale, made and conducted as prescribed in this article, to a
purchaser in good faith, is equivalent to a sale pursuant to
judgment in an action to foreclose the mortgage, so far only as
to be an entire bar of all claim or equity of redemption, upon,
or with respect to, the property sold, of each of the following
1. The mortgagor, his heir, devisee, executor or administrator.
2. Each person claiming under any of them, by virtue of a title
or of a lien by judgment or decree, subsequent to the
mortgage, upon whom the notice of sale was served, as
prescribed in this article.
3. Each person so claiming, whose assignment, mortgage, or
other conveyance was not duly recorded in the proper book
for recording the same in the county, or whose judgment or
decree was not duly docketed in the county clerk's office,
at the time of the delivery of a copy of the notice of said
sale to the clerk of the county; and the executor,
administrator, or assignee of such a person.
4. Every other person, claiming under a statutory lien or
incumbrance, created subsequent to the mortgage, attaching
to the title or interest of any person, designated in either
of the foregoing subdivisions of this section.
5. The wife or widow of the mortgagor, or of a subsequent
grantee, upon whom notice of the sale was served as
prescribed in this article, where the lien of the mortgage
was superior to her contingent or vested right of dower, or
her estate in dower.
Sec. 1421. AFFIDAVITS ON SALE.
An affidavit of the sale, stating the time when and the place
where the sale was made; the sum bid for each distinct parcel,
separately sold; the name of the purchaser of each distinct
parcel; and the name of the person or persons, court officer or
other officer, to whom the proceeds of the sale were paid, and
the sums thereof, must be made by the person who officiated as
auctioneer upon the sale. An affidavit of the publication of the
notice of sale, and of the notice or notices of postponement, if
any, may be made by the publisher or printer of the newspaper in
which they were published, or by his foreman or principal clerk.
An affidavit of the affixing of a copy of the notice, at or near
the entrance of the proper courthouse, may be made by the person
who so affixed it, or by any person who saw it so affixed at
least eighty-four days before the day of sale. An affidavit of
the affixing of a copy of the notice in the book kept by the
county clerk may be made by the county clerk, or by any person
who saw it so affixed at least eighty-four days before the day of
sale. An affidavit of the service of a copy of the notice upon
the mortgagor or upon any other person, upon whom the notice must
or may be served, may be made by the person who made the service.
Where two or more distinct parcels are sold to different
purchasers, separate affidavits may be made with respect to each
parcel, or one set of affidavits may be made for all the parcels.
Sec. 1422. WHEN ONE AFFIDAVIT SUFFICES; PRINTED NOTICE TO BE
The matters required to be contained in any or all of the
affidavits specified in section 1421 may be contained in one
affidavit, where the same person deposes with respect to them. A
printed copy of the notice of sale must be annexed to each
affidavit; and a printed copy of each notice of postponement must
be annexed to the affidavit of publication, and to the affidavit
of sale. But one copy of the notice suffices for two or more
affidavits, when they all refer to it and are annexed to each
other and filed and recorded together.
Sec. 1423. AFFIDAVITS MAY BE FILED AND RECORDED.
The affidavits specified in sections 1421 and 1422 may be filed
in the office for recording deeds and mortgages, in the county
where the sale took place. They must be recorded at length by the
officer with whom they are filed, in the proper book for
recording deeds. The original affidavits, so filed, the record
thereof, and a certified copy of the record, are presumptive
evidence of the matters of fact therein stated, with respect to
any property sold which is situated in that county. Where the
property sold is situated in two or more counties, a copy of the
affidavits, certified by the officer with whom the originals are
filed, may be filed and recorded in each other county, wherein
any of the property is situated. Thereupon the copy and the
record thereof have the like effect, with respect to the property
in that county, as if the originals were duly filed and recorded
Sec. 1424. NOTE UPON RECORD OF MORTGAGE.
A clerk or register who records any affidavits, or a certified
copy thereof, filed with him, must make a note upon the margin of
the record of the mortgage in his office, referring to the book
and page, or the copy thereof, where the affidavits are recorded.
Sec. 1425. DEED NOT NECESSARY; WHEN AFFIDAVITS NOT NECESSARY;
BUT PURCHASER MAY REQUIRE AFFIDAVITS.
The purchaser of the mortgaged premises, upon a sale conducted as
prescribed in this article, obtains title thereto, against all
persons bound by the sale, without the execution of a conveyance.
Except where he is the person authorized to execute the power of
sale, such a purchaser also obtains title, in like manner, upon
payment of the purchase-money and compliance with the other terms
of sale, if any, without the filing and recording of the
affidavits, as prescribed in section 1423. But he is not bound to
pay the purchase-money until the affidavits, specified in
sections 1421 and 1422, with respect to the property purchased by
him, are filed, or delivered or tendered to him for filing.
Sec. 1431. COSTS ALLOWED.
The following costs, in addition to the expenses specified in
section 1432, are allowed in proceedings taken as prescribed in
1. For drawing a notice of sale, a notice of the postponement
of a sale, or an affidavit, made as prescribed in this
article, for each folio, twenty-five cents; for making each
necessary copy thereof for each folio, thirteen cents.
2. For serving each copy of the notice of sale, required or
expressly permitted to be served by this article, and for
affixing each copy thereof, required to be affixed upon the
courthouse, as prescribed in this article, one dollar.
3. For superintending the sale, and attending to the execution
of the necessary papers, ten dollars, and in addition
thereto the following percentages upon the amount due upon
the first publication of the notice of sale:
a. Upon a sum not exceeding two hundred dollars, ten per
b. Upon an additional sum not exceeding four hundred
dollars, five per centum;
c. Upon an additional sum not exceeding one thousand
dollars, two per centum.
Sec. 1432. EXPENSES ALLOWED.
The sums actually paid for the following services, not exceeding
the fees allowed by law for those services, are allowed in
proceedings taken as prescribed in this article:
1. For publishing the notice of sale, and the notice or notices
of postponement, if any, for a period not exceeding twenty-
2. For the services specified in section 1404.
3. For recording the affidavits; and also, where the property
sold is situated in two or more counties, for making and
recording the necessary certified copies thereof.
4. For necessary postage and searches.
Sec. 1433. TAXATION OF COSTS AND EXPENSES.
The costs and expenses must be taxed, upon notice, by the clerk
of the county where the sale took place, upon the request and at
the expense of any person interested in the payment thereof. Such
costs and expenses shall be taxed, and such taxation may be
reviewed, in the same manner as costs in a civil action in the
Sec. 1441. SURPLUS MONEY TO BE PAID INTO SUPREME COURT.
An attorney or other person who receives any money, arising upon
a sale made as prescribed in this article, must, within ten days
after he receives it, pay into the supreme court the surplus,
exceeding the sum due and to become due upon the mortgage and the
costs and expenses of the foreclosure, in like manner and with
like effect as if the proceedings to foreclose the mortgage were
taken in an action brought in the supreme court and triable in
the county where the sale took place.
Sec. 1442. PETITION FOR SURPLUS.
A person who had, at the time of the sale, an interest in or lien
upon the property sold, or a part thereof, may, at any time
before an order is made as prescribed in section 1444, file in
the office of the clerk of the county where the sale took place a
petition stating the nature and extent of his claim, and praying
for an order directing the payment to him of the surplus money,
or a part thereof.
Sec. 1443. PROCEEDINGS ON PETITION.
A person filing a petition as prescribed in section 1442 may,
after the expiration of twenty days from the day of sale, apply
to the supreme court, at a term held within the judicial district
embracing the county where his petition is filed, for an order
pursuant to the prayer of his petition. Notice of the application
must be served, in the manner prescribed by law for the service
of a paper upon an attorney in a civil action, in a court of
record, upon each person who has filed a like petition, at least
eight days before the application; and also upon each person,
upon whom a notice of sale was served, as shown in the affidavit
of sale, or upon his executor or administrator. But if it is
shown to the court, by affidavit, that service upon any person
required to be served cannot be so made with due diligence,
notice may be given to him in any manner which the court directs.
Sec. 1444. ORDER FOR DISTRIBUTION.
Upon the presentation of the petition, with due proof of a notice
of application, the court must make an order referring it to a
suitable person to ascertain and report the amount due to the
petitioner, and to each other person, which is a lien upon the
surplus money; and the priorities of the several liens thereupon.
Upon the coming in and confirmation of the referee's report, the
court must make such an order, for the distribution of the
surplus money, as justice requires. A tenant for life or for
years in the real property sold is entitled to receive from the
surplus, in satisfaction of his estate or interest, either a sum
in gross or the earnings of a sum invested for his benefit. The
determination as to whether a sum in gross or the earnings of a
sum invested shall be awarded to the owner of such particular
estate shall be governed by the provisions with respect to the
proceeds of a sale in partition.
Sec. 1445. LIMITATION OF SECTIONS RELATING TO SURPLUS MONEY.
Sections 1441 through 1444 do not apply to surplus money arising
upon the sale of real property of which a decedent died seized
where letters testamentary or letters of administration, upon the
decedent's estate, were, within two years before the sale, issued
from a surrogate's court within the state, having jurisdiction to
Sec. 1451. DELIVERY OF CERTAIN AFFIDAVITS TO PURCHASER.
Each county clerk and register in this state, in whose office
affidavits in foreclosure of mortgages by advertisement, or the
certified copies thereof, have been or shall be filed and
recorded pursuant to the provisions of this article, is hereby
authorized to deliver the same to the purchaser of the mortgaged
property on the foreclosure sale, and such purchaser shall be
entitled to such delivery.
Sec. 1461. APPLICATION OF THIS ARTICLE TO MORTGAGES OF THE
This article does not affect any provision of law, inconsistent
therewith, especially relating to the foreclosure of mortgages to
the people of the state, or to the commissioners for loaning
certain moneys of the United States.