606 N.Y.S.2d 669 | N.Y. App. Div. | 1994
—Order, Supreme Court, New York County (Seymour Schwartz, J.) entered January 5, 1993 which confirmed the Referee’s report except as to the provision allowing for the accrual of interest only through March 23, 1990 and instead provided for accrual of interest to the date of entry of an order, unanimously modified, on the law, the facts and in exercise of discretion to the extent of confirming the Referee’s report in its entirety and directing that the accrual of interest cease on March 23, 1990, and otherwise affirmed, without costs.
After a full hearing, the Special Referee found that the defendant’s tender of a check at the closing on March 23, 1990 was of a sum sufficient to cover the outstanding indebtedness under plaintiffs’ mortgage. Plaintiffs’ refusal to accept this sum results in forfeiture of any additional interest under the mortgage since under the circumstances herein defendant kept the tender good by depositing a check with the title company for the new lender and by then attempting to deposit that sum with the court in the then pending foreclosure action. The equitable principles governing tender and the efforts to keep tender good preponderate in favor of the defendant in this case and accordingly it would be unjust for plaintiffs to recover interest past the date of tender (cf., Geary v Dade Dev. Corp., 29 NY2d 457, 461-462).
We have considered plaintiffs’ remaining contentions for additional interest and additional counsel fees and find them to be without merit. Concur — Rosenberger, J. P., Wallach, Kupferman, Ross and Tom, JJ.
