3 Wend. 412 | N.Y. Sup. Ct. | 1829
By the Court,
It was clearly the intention of the parties that the mortgage should be transferred for the balance actually due at the time of the transfer; previous to which time there had been a payment of $37 not taken into the account in ascertaining the balance, nor known to either party. The amount of this payment, with the interest, ought to be allowed to the plaintiff.
But the defendant claims an off-set of taxes charged upon the mortgaged premises, and paid by him to redeem them ; and the plaintiff agreed to pay these taxes if they, or any part of them, could be collected under the mortgage. It is clear that the amount paid for these taxes is as much a charge on the premises as the money specified in the mortgage, (1 Hopk. Ch. R. 283;) and it is not shewn that the plaintiff did not or could not collect them. He should have caused this disbursement to be included in the master’s report of the sum due on the mortgage. By law he had a right to collect it, and if by the facts he was prevented from doing so, he should have shewn it. I am therefore of opinion that the defendant ought to have judgment for the balance paid for the taxes, and interest thereon, after deducting the $37 and the interest of it.
There vtras something said on the argument of the insufficiency of the notice to admit of the set-off claimed by the defendant. I have not taken that objection into consideration, because the notice was not included in, nor did it accompany the case.
Judgment for the defendant for the balance.