| New York Court of Chancery | Feb 25, 1924
This is a mJOtion to strike out the answer filed by the defendants in the above-entitled cause. The facts are as follows:
On January 22d, 1923, Michael Rotman executed a bond and mortgage to David Hollandei, in the sum of $8,000, payable $2,000 on September 1st, 1923; $3,000 on September 1st, 1924, and $3,000 on September 1st, 1925, with interest at six per cent., payable semi-annually.
Both bond and mortgage contained-an agreement that if any installment of interest should remain unpaid for sixty clays after the same fell due, that the whole principal sum, with all unpaid interest, should, at the option of the mortgagee, his heirs and assigns, become immediately due.
On March 2d, 1923, this mortgage was assigned to the complainant.
On July 22d, 1923, six months’ interest fell due on said bond and mortgage.
On September 8th, 1923, a check was forwarded to the complainant for $240 in payment of said interest, which the complainant kept until September 28th, 1923. Said check for interest was deposited on September 28th, 1923, and was returned by the bank for want of funds.
On September 28th, 1923, the $2,000 installment of principal was paid to the complainant before the check for the payment of the interest was protested, and before the complainant had any notice that the check in payment of the interest would not be paid by the bank upon which it was drawn.
The first point is whether the delay of complainant in presenting the check for payment worked such an injury to the defendants that complainant should not be allowed to proceed with the foreclosure until the matter has been heard on final hearing. Section 186 of the Negotiable Instrument act provides that a check must be presented for payment
Supreme court of Oregon said:
“The holder's laches in presenting a check for payment constitutes no defense in an action against the drawer unless he is damaged by the delay, and then only to the extent of his loss. A check purports to be made upon a deposit to meet it, and presupposes funds of the drawer in the hands of the drawee. But, if the drawer has no such'funds at the time of drawing his check, or subsequently withdraws them, he com-mils a fraud upon the payee, and can suffer no loss or damage from the holder’s delay in respect to presentment or notice. In such case he is liable and cannot insist upon a formal demand or notice of non-payment.”
The other point raised is that the complainant accepted on September 28th, $2,000 as an installment on the principal, and that the defendant contends' is sufficient to waive any rights the complainant might have on account of the returned protested check. In the first place, the letter enclosing the check specifically says that the enclosed check is a payment due on the mortgage, and that under the circumstances the complainant had no option except to apply it on the principal. There is another doctrine also involved in this case, and that is that the creditor may apply the payment in whatever way he pleases, but in this case at bar he could not apply it to anything but the principal, because the debtor instructed him to pay' it on account of principal. Moreover, the complainant was unaware that the check for interest was bad when he accepted the $2,000.