48 A.D.2d 413 | N.Y. App. Div. | 1975
Another phase of this appropriation case was recently determined by this court. (124 Ferry St. Realty Corp.
From our research, we are unable to find that the first of these issues, has been passed upon by the courts of this State. In our view, however, the trial court properly held claimants were not entitled to an award for the prepayment penalty provided for in the bond and mortgage. Implicit in the right to recover under a prepayment penalty provision of a bond and mortgage is the election by the mortgagor to terminate the mortgage by early payment. Prepayment of the mortgage may be a detriment to the mortgagee and the parties may in such event provide by agreement for such a contingency, as they did in the present case. No such voluntary prepayment of the mortgage by the mortgagor occurred here, however. It was the State’s appropriation of the property securing the mortgage which accelerated the mortgage payment. By the language of the mortgage, this event was neither envisioned, nor contemplated, by the parties. Claimants, therefore, were not entitled to the prepayment penalty under such circumstances. Similar results were reached by the courts of two of our sister States. (Jala Corp. v Berkeley Sav. & Loan Assn., 104 NJ Super 394; Chestnut Corp. v Bankers Bond & Mtge. Co., 395 Pa 153.)
The claimants maintain, however, that as the result of the May 14, 1970 amendment to subdivision 13-d of section 30 of the Highway Law, they are entitled to the sum fixed in the mortgage as a surcharge for the prepayment contingency. This contention also lacks merit. It is significant that the appropriation in question occurred on November 21, 1968. This amendment was enacted some 19 months later and specifically provided for an effective date of May 14, 1970. Since there is a presumption against retrospective application of a statute, it will be applied prospectively unless a clear contrary expression is stated. (Gleason v Gleason, 26 NY2d 28.) Such construction is further bolstered in the instant case by the postponement of the effective date. (Matter of Mulligan v Murphy, 14 NY2d 223, 226.)
The judgment, insofar as appealed from, should be modified,, on the law, so as to allow claimants interest on moneys due on the mortgage from May 21, 1969 to June 29, 1970, and, as so modified, affirmed, without costs.
Herlihy, P. J., Greenblott, Main and Larkin, JJ. concur.
Judgment, insofar as appealed from, modified, on the law, so as to allow claimants interest on moneys due on the mortgage from May 21, 1969 to June 29, 1970, and, as so modified, affirmed, without costs.