In re the Estate of Ashman

246 A.D. 671 | N.Y. App. Div. | 1935

This is an appeal from an order discharging a mortgage given by George H. Ashman to the Schenectady Building Loan and Savings Association. The mortgage was given in 1923 and was to be payable fifty dollars a month, which would make it mature in 1934. Both Ashman and his wife died previous to the mortgage being paid off. The mortgage provided, among other things, that the mortgage was given to secure the loan and also all fines that may become due as provided for by the constitution and by-laws of the association. The principal amount of the mortgage and interest thereon was fully paid but dues were owing to the association and fines as provided by the by-laws and constitution governing the same in the sum of $327.50. The fines had accumulated because of the failure of Ashman to pay dues and interest when due. • Five dollars of these fines were paid in 1924. No further sum was paid on the fines or dues. It is claimed by the respondent that the building and loan association waived payment by not demanding it. The association frequently wrote letters and demanded the payments and it was entitled to have the payments made before being compelled to discharge the bond and mortgage. Under the terms it was entitled to foreclose the mortgage in case it was not paid. There was no waiver on the part of the association. The order appealed from canceling said mortgage of record should be reversed, with costs. Order reversed on the law and facts, and proceeding dismissed, with costs. Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ., concur.