88 N.Y.S. 628 | N.Y. App. Div. | 1904
Lead Opinion
This action was brought to recovér back the sum of $1,000, which it is claimed the defendant exacted from the plaintiff as a condition for accepting money to extinguish the lien of a mortgage upon real estate under circumstances presently to be adverted to. The theory of the action is that the $1,000 was paid under coercion and in order to secure the discharge of the mortgage, and that, in addition, it is to be regarded as having been exacted and paid, contrary to the statutes of the State against usury, and that on that ground the plaintiff has a right to recover the money. On the trial of the action the complaint was dismissed.
The mortgagor, Kilpatrick, failed to pay interest on August'!, 1900, and on the sixth of that month the defendant commenced a 'suit to foreclose the mortgage. On August 22, 1900, sixteen days •after this foreclosure suit was begun, the defendant procured its discontinuance without costs. Meantime, this plaintiff had.been served with process in the foreclosure action, and thereupon sought to
Under those circumstances, it seems to me that it cannot be said that this $1,000’ was paid under coercion. A foreclosure suit had been begun, but the Germania Life Insurance Company was not bound to persist in that suit — no new agreement had been made with the plaintiff concerning the payment of the mortgage debt and there was no binding election of the insurance company to insist upon a remedy of foreclosure. The plaintiff’s agent had applied to the attorney for the mortgagee, not for an extension. of time to answer, but simply for “ a little more time * * * than.the twenty days” in which an answer might be interposed, to obtain money from some other place to pay off the mortgage; and thereupon the insurance company elected to discontinue and abandon its foreclosure action. It had the right to sue for interest, but it left the agreement as to the $1,000 intact. When the plaintiff’s agent was informed of the discontinuance of the foreclosure suit, a new mortgage had not been
The judgment and order should be affirmed, with costs.
O’Brien and Laughlin, JJ., concurred; Yan Brunt, P. J., and Hatch, J., dissented.
Dissenting Opinion
I dissent from the prevailing opinion in this case. When the action was instituted to foreclose the mortgage it was notice to the mortgagor that he was required to pay the same, and thereupon he proceeded to make arrangements to raise the money to comply with the demand thus sought to be enforced against him. After the mortgagor had made such arrangements and obtained the
Judgment and order affirmed, with costs.
Dissenting Opinion
I dissent. The defendant had elected, as it had a right to do, that the mortgage should become due. Having thus elected and the mortgage having become due, the plaintiff had the right to pay the mortgage, and he having negotiated a new mortgage and the defendant by demanding payment of the $1,000 before he could get rid of the old mortgage, coerced him into paying the same.