128 Misc. 375 | N.Y. Sup. Ct. | 1926
The bond and mortgage contain the following clause: “ And it is hereby expressly agreed that the whole of said principal sum shall become due after default in the payment of any installment of principal or interest or any part thereof for thirty days.” By section 254 of the Real Property. Law (as amd. by Laws of 1917, chap. 682) such a covenant must be construed as meaning that the “ principal sum, with all arrearages of interest thereon, shall, at the option of the said mortgagee * * * become and be payable immediately ” after such default.
An installment of interest became due May 25, 1926. On June twenty-fifth defendant went to plaintiff’s residence to pay the interest of thirty-one dollars and fifty cents; the plaintiff’s residence was closed and defendant did not see plaintiff; on June twenty-sixth defendant went to plaintiff’s residence, saw plaintiff, tendered the interest, plaintiff refused to receive it, stating to defendant that defendant must see plaintiff’s lawyer. On July 3, 1926, an order was entered in the Erie county clerk’s office, directing defendant to deposit the interest tendered with the county treasurer to be held until the further order of the court; such deposit was duly made. On July eighth this action was commenced, the complaint being verified on the first day of Juh'
Attention has been called to no authority holding that a tender of an installment of interest after default and before election will not bar a subsequent election by mortgagee to deem the whole debt due.
In Osborne v. Ketcham (76 Hun, 325); Hothorn v. Louis (52 App. Div. 218); Pizer v. Herzig (120 id. 102) and Rosche v. Kosmowski (61 id. 23) the tender of interest was made after election, after the exercise of the option to deem the entire debt due; in each of these cases the election was made manifest by affirmative act, notice or bringing of the action. In Cole v. Hinck (120 App. Div. 355) it does not appear that tender was made before action was commenced; it does not appear how plaintiff’s election to take advantage of the mortgage clause was made manifest; it does not appear whether such election was before or after tender of the interest. The tender of the interest June 26, 1926, by defendant to plaintiff in person, the refusal to accept by the plaintiff and the statement by plaintiff to defendant that defendant must see the plaintiff’s lawyer, was not an election to deem the whole amount due.
The finding must be that the plaintiff not having elected to deem the mortgage debt due before the defendant’s tender of the interest, the tender was good and barred the plaintiff’s right to thereafter elect that the same had matured.
Judgment awarded defendant dismissing the complaint, with costs.