58 A.D.2d 617 | N.Y. App. Div. | 1977
In a mortgage foreclosure action, plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered September 20, 1976, which, after a nonjury trial, inter alia, (1) dismissed the complaint on the merits, (2) adjudged that defendant-respondent Erhal Holding Corp. is the fee owner of the premises, (3) adjudged that the said defendant properly tendered payment of the mortgage payments due on January 1 and February 1, 1975 and was not legally obligated to tender mortgage payments for months subsequent to February, 1975, (4) adjudged that the mortgage debt in the principal sum of $42,168.84 remained due and owing from January 1, 1975 at 6% interest and (5) referred the counterclaims to another Part for disposition. Judgment reversed, on the law and the facts, with costs, and it is directed that plaintiff have judgment on her complaint and that all counterclaims be dismissed. Action remitted to Special Term for further proceedings not inconsistent herewith. In our opinion plaintiff, the holder of a second mortgage, established the allegations of her complaint, and we find that the counterclaims of respondent Erhal Holding Corp. are without merit. We note that the sum of $464.20 was due plaintiff for January, and again for February, 1975, under the mortgage (which Erhal recognizes), as well as under the extension agreement of February 1, 1974, executed by plaintiff and defendant Martut, Inc., which extension agreement respondent Erhal claims is not binding on it because, inter alia, it obtained title to the property by virtue of an absolute conveyance from Martut by deed dated January 29, 1974 and recorded January 31, 1974. The January and February, 1975 sums due were never paid to plaintiff. Erhal’s "tender” of certified checks for those payments, in effect, was conditioned upon plaintiff’s agreement that the extension agreement, with its 9% interest rate, was not binding Erhal and that the "proper” interest rate was 6%, in accordance with the second mortgage prior to .its extension. This, despite the fact that plaintiff had entered into the extension agreement with Martut on February 1, 1974 partially as an inducement to discontinue a prior foreclosure action against Martut, which action Erhal, as fourth mortgagee, sought to have discontinued. There was no dispute as to the fact that $464.20 became due for January, 1975 and another $464.20 became due for February, 1975. Thus there was no lawful basis for the failure to make a direct and unequivocal payment to plaintiff of those amounts. There was no lawful basis for the conditions attached to Erhal’s tender. "The amount must be produced and an actual and unequivocal offer of the same made to the other party” (New York Utility Co. v Williamsburg Steam Laundry Co., 187 App Div 110, 112; Frost v Yonkers Sav. Bank, 70 NY 553, 557-558). Further, we find that on the basis of all of the evidence, Erhal, in 1974, was well aware of the extension agreement and its 9% interest rate—as evidenced by its letter to plaintiff’s attorney dated