109 Misc. 662 | New York County Court, Kings County | 1919
This is an action to foreclose a mortgage made by defendant on the 10th day of September, 1918, for the sum of $3,750. It provides that the principal shall be paid by installments of $250 each, the first payment to be made April 1, 1919, the remaining payments semi-annually thereafter. The mortgage further provides “ that in the event of any default of payment of the installments, the entire balance of the principal sum remaining due, shall immediately become due and payable.” On December 1, 1918, plaintiff notified defendant by letter that the first payment of interest, amounting to $63, would be due on January 1, 1919. That on January 2, 1919, defendant mailed to plaintiff a check for $51.56, as payment of the interest due, instead of the sum of $63. Plaintiff however retained, the check for $51.56, for more than three months when she returned it to defendant, as not being the proper amount due. The evidence shows that on March 4, 1919, plaintiff notified defendant by letter that the first installment of $250 would fall due on the 1st day of April, 1919, and made a formal demand for the payment of said installment when due, in addition to all arrears remaining unpaid according to the terms and conditions of the bond and mortgage. This notice also stated that it was without prejudice to the rights of the plaintiff and without waiving the prior demand for the interest, which plaintiff claimed had not been paid. The evidence shows that on April 7, 1919, plaintiff returned the interest check for $51.56 to defendant, as not being the proper amount, and demanded payment of the entire amount of the principal of the mortgage with
The learned counsel for defendant contends that plaintiff having on the 19th day of April, 1919, accepted the check for sixty-three dollars and sixty-eight cents interest which fell due on January 1, 1919, is thereby estopped and waived her right to foreclosure. There is no legal or equitable force in counsel’s contention, since plaintiff accepted only what was due under the conditions contained in said bond and mortgage. Had defendant mailed to plaintiff a check for an amount of interest to become due at a future specified time, and plaintiff accepted it, without informing defendant that she intended to exercise her right to foreclose, there might be some force in the learned counsel’s contention. Counsel for defendant cites the case of Lawson v. Barron, 18 Hun, 415, in support of his position. In that case the action was commenced because of default in payment of the interest on the principal for sixty days. Notwithstanding, plaintiff accepted payment of said interest, and gave a receipt for it, and at the time he accepted payment he made
With all respect to the learned counsel for the defendant, this court fails to see .any analogy between the case of Lawson v. Barron, and the case at bar. In that case the foreclosure action was for a default in the payment of interest. In the case at bar, the action is brought to foreclose a mortgage for the non-payment of an installment of $250 on the principal sum. In Rathbone v. Forsyth, 171 App. Div. 26, the learned court said: “We have recently held that where there was a right to rescind a contract the acceptance of a part performance * * * was a waiver,” and cited French v. Row, 77 Hun, 380, quoting from page 385. But in that case the plaintiff accepted from the defendant six months’ interest in advance, knowing it was not due. Plaintiff in the case at bar was guilty of no fraud or oppression.
One of the covenants contained in the mortgage given by defendant to plaintiff, and which is herein sought to be foreclosed, reads as follows: “ In the event of any default in payment of any of the said installment payments, the entire balance of the principal sum remaining due, shall immediately become due and payable. ’ ’ The evidence shows that on the 4th day o£ March, 1919, the plaintiff notified the defendant in writing that the first installment of $250 according to
The question arises whether this court exercising its equitable jurisdiction can excuse the defendant for neglecting to comply with the conditions contained in the bond and mortgage or alter the terms of said instrument without the consent of the plaintiff. No doubt this court has jurisdiction to correct errors in contracts over which it has jurisdiction and make them conformable to the agreement between the parties. But nothing of the kind is before it in this case. The evidence shows that on the fourth day of March the plaintiff notified defendant that the first installment would-fall due on the first day of April, 1919, therefore defendant had fair notice of the conditions in the mortgage, and that upon his neglecting to comply with the conditions in the mortgage, the principal became due and payable by the terms of his contract. And in the absence of fraud this like any other contract will be enforced in a court of equity. Valentine v. Van Wagner, 37 Barb. 61; Ferris v. Ferris, 28 id. 29; Noyes v. Clark, 7 Paige, 179; Steel v. Bradfield, 4 Taunt. 227; Martin v. Clover, 45 N. Y. St. Repr. 44; 17 N. Y. Supp. 638.
Judgment for plaintiff.