107 N.Y. 637 | NY | 1887
The following is the opinion in this action:
“ On the 1st day of ^November, 1869, the defendant,, Doscher, owning certain real estate in the city of Brooklyn, executed to the plaintiff a mortgage thereon, to secure the sum of $4,000. The mortgage contained a provision that the. mortgagor should pay ‘all taxes, charges and assessments which may be imposed by law upon the said mortgaged premises or any part thereof, and in default thereof that it. shall be lawful,’ for the mortgagee, ‘ to pay the amount of any such tax, charge or assessment, with any expenses attending the same, and any amount so paid ’ the mortgagors covenanted to repay, with interest, and that the same should be a lien upon the premises. On the 5th day of May, 1870, Doscher executed another mortgage on the same real estate to the defendant Yon Glahn. In December, 1882, Yon Glahn commenced an action in the Supreme Court to foreclose his mortgage, and his action resulted in a foreclosure of the mortgage and a sale of the premises, at which he became the. purchaser on the 15th day of March, 1883. On the following; day he received a deed and took possession, and has ever since-
“It is unnecessary for us to determine precisely what effect "the tender of Yon Glahn, which was not kept good, had, under "the circumstances of this case, because there is another ground "upon which the decision of the General Term can be Sustained. Upon the trial it appeared that there were taxes and water rates for five consecutive years, commencing in the year 1877, :and some assessments for grading and paving and for a'sewer, •amounting in all to more than $1,000, all charges upon the land which were due and unpaid, and which the mortgagor had neglected to pay. The plaintiff paid such taxes and •assessments, and in reference to such payment the trial court found as follows:
“1 Twelfth. That on the said 27th day of June, 1882, the ■plaintiffs, in order to prevent the accumulation of interest upon said unpaid taxes, water rates and assessments, and in pursuance of .the powers and privileges which their said mort
“ In pursuance of his employment, Mosscrop examined and investigated each of the taxes, water rates and assessments; saw that proper deductions were made therefrom under the act, Chapter 348 of the Laws of 1882, and procured accurate bills of the amounts which should be paid upon the same, and took them to the plaintiff who then paid them, and also paid him for his services $58.48 which is the item above referred to which was in dispute between the parties. The plaintiff claims that the sum thus paid to Mosscrop was an expense within the meaning of the mortgage attending the payment of the taxes, water rates and assessments.
“It is not entirely clear what expense was alluded to in the • phrase in the mortgage ‘ with any expense attending the same.’ If its meaning is doubtful the doubt may be solved in favor of the mortgagee, as the language is that of the mortgagor. On the part of the defendant it is claimed that the word
“ We are, therefore, of opinion that the tender was insufficient in amount, and ineffectual; and for this reason the order of the General Term should be affirmed and judgment absolute rendered against the appellant upon his stipulation.”
reads for affirmance of order and for judgment absolute against appellant on stipulation.
All concur except Huger, Oh. J., not voting; Danforth, J., concurring in result.
Order affirmed and judgment accordingly.