96 N.Y.S. 64 | N.Y. Sup. Ct. | 1905
The plaintiffs, seeking to foreclose certain mortgages made by the defendant Hayden covering the premises on Hopkinson avenue, Brooklyn, for nonpayment of principal, Hayden denies that the principal is due, and alleges that in March, 1904, the plaintiffs, for a valuable consideration, agreed with him to extend the time of payment to May 1, 1905. The plaintiffs deny the extension, and in addition they claim that Hayden conveyed the property to the defendant Dugan, who offers no objection to the foreclosure of the mortgage and the sale of the premises. They
When this case was tried, a day was fixed for submission of briefs, exhibits and papers j owing to a misunderstanding, and without fault on the part of counsel for either party, the plaintiffs’ papers only reached the court, and having retained them for some time beyond the day fixed, no papers, briefs or exhibits coming from defendant Hayden, the trial justice, in the belief that Hayden had abandoned his defense, filed the papers on March 17, 1905, with an indorsement “ Judgment for plaintiffs.” It appearing that Hayden had, in fact, filed his papers, briefs and exhibits in due time with the clerk, as required by the rule, and the clerk was holding them for receipt of plaintiffs’ papers, which had been handed, through oversight, directly to the trial justice, the indorsement on the papers under date of March seventeenth was cancelled with the assent of both parties, and the case is now before the court for decision.
I have reached the conclusion that the time of payment of these mortgages was extended to May 1, 1905. Originally payable on demand, Hayden offers in evidence a letter from the plaintiff Macaulay to him under date of February 8,1904 (Exhibit B), requiring him to release certain other property
“ III. The parties of the third part, in consideration of the above premises, agree to extend the time of payment of the eleven mortgages made by the party of the first part (Hayden) to said parties of the third part, affecting the premises on St. Mark’s avenue, Hopkinson avenue and Prospect place, in the Borough of Brooklyn, City of New York, which said eleven mortgages are dated November 16th, 1903, and recorded in Kings County ¡Register’s office on the seventeenth day of November, 1903, and which, according to the original tenor thereof, were payable on demand; so that the said eleven mortgages shall become due and payable on the first day of May in the year 1905.”
The plaintiffs say that this was simply an agreement to execute a contract extending the time of payment of the mortgages; that it is not a complete instrument containing in itself an extension. It appears that plaintiffs’ counsel prepared a formal extension agreement, containing clauses relative to payment of interest and other conditions usually found in extension agreements. They offered this to Hayden’s counsel, signed by plaintiffs, and requested Hayden’s signature, but Hayden refused to sign it, on the theory that Exhibit A contained the agreement, and that in executing Exhibit A he, Hayden, had performed his part of the contract. Under the authorities, I think his claim must be upheld. Agreements far less specific and formal have been held as between the parties, to work an extension of the time of pay
I think the suits are prematurely brought and that the complaints must be dismissed, with costs.
Complaints dismissed, with costs.