Exchange Fire Insurance v. Norris

26 N.Y.S. 823 | N.Y. Sup. Ct. | 1893

VAN BRUNT, P. J.

The complaint in this action is the ordinary pleading upon the part of the plaintiff for the foreclosure of a mortgage upon failure to pay interest when due. The answer alleged an agreement extending the time of payment, and also a tender to the plaintiff before suit brought of the whole amount of interest due, and a refusal upon the part of the plaintiff to accept. It seems to be apparent that the learned judge who heard the motion in the court below did not think the answer was frivolous, because he thought it necessary to write quite a lengthy opinion for the purpose of showing that no defense was set up by the defendant. It is also equally true that the learned counsel for the respondent does not think that the answer is frivolous, as he has submitted lengthy points upon the question as to whether any defense is set up in the answer or not. ' It has been too often determined to require demonstration here that, if the question as to whether an answer sets up a defense or not requires argument, the pleading is not frivolous. The ground upon which the respondent claims that the tender was a nullity was because it was not kept good, and the money paid into court. That this is not necessary in order to make a tender extinguish the lien of a mortgage was held so far back as the case of Kortright v. Cady, 21 N. Y. 343. And it may very well be argued that by the tender of this interest, which was due at the time of the tender, and which was all that was due, because there was no evidence of any election at that time upon the part of the plaintiff, the lien of the mortgage to that extent may have been extinguished. In such cases it is not necessary, in order to defeat the lien, that the tender should be kept good. It was held in Cass v. Higenbotam, 100 N. Y. 248-253, 3 N. E. 189, that where a tender has only the effect to extinguish the lien, and not to discharge the debt, bringing the money into court is not required. The defendant undoubtedly set up a defense of greater gravity than he imagined at the time he pleaded it. It seems to us that the pleading is clearly not frivolous, and the order should be reversed, with $10 costs and disbursements. All concur.