61 N.Y.S. 944 | N.Y. Sup. Ct. | 1899
The defendant gave his bond as collateral security for the payment of a mortgage for $4,000 held by plaintiff upon certain property in Hew Jersey. Upon a foreclosure of the mortgage there was a deficiency of $8,128.31, for which this action was brought. As soon as the action was begun the defendant, through a Hew Jersey attorney, addressed a letter to plaintiff offering to pay the deficiency, interest and costs, if plaintiff would convey to him the property covered by the mortgage. This offer was promptly accepted by the plaintiff, in a letter which said: “ If Mr¡ Kroehle will pay the company amount of claim, with interests and costs, we will convey the property and claim for deficiency to him.” The Hew Jersey attorney thereupon wrote to defendant asking the amount of the deficiency, costs and interest. This letter was answered by the gentleman who acts as attorney for the plaintiff in the present action, mentioning the fact of the pendency of this action in which defendant had appeared, and that it would be necessary to have a consent to a discontinuance of that action. He gave the items of the plaintiff’s claim, including an item reading, “ costs in Hew York action, $15.” A few days later, and before defendant’s time to answer or demur to the complaint had expired, a written contract was entered into between plaintiff and defendant, whereby plaintiff agreed to reconvey the mortgaged property to defendant on payment of the sum of $4,545, being the sum due upon the mortgage, with interests and costs of foreclosure, on or before Hovember 8, 1899, with costs of the plaintiff’s attorney in this action. On the appointed day, defendant, with his attorney, appeared at plaintiff’s offices prepared to complete the sale according to the terms of the contract. It will be seen that the amount of plaintiff’s costs in this action had not been specifically stated in the
Motion granted, with ten dollars costs, with leave to defendant to answer or demur within ten days.