247 A.D. 588 | N.Y. App. Div. | 1936
The court has not refused to entertain jurisdiction of this action as a matter of discretion, but has dismissed the complaint because it fails to state facts sufficient to constitute a cause of action.
Johnson v. Meyer (242 App. Div. 798; affd., 268 N. Y. 701) is not decisive of the controversy between the parties, as is stated by the court at Special Term. The important question here is whether a suit for interest and taxes at this time will work a forfeiture of the principal of the mortgage, which by the terms of the instrument is now due, and which in fact became due before the enactment of the moratorium statutes. That precise question was not decided or discussed in Johnson v. Meyer and the record in that case does not disclose the date of maturity of the principal indebtedness.
Giving the complaint the liberal construction which is required by section 275 of the Civil Practice Act, we think that a cause of action is stated. Facts are set forth which show an uncertain or disputed jural relation as to prospective obligations between the parties, which can very well be decided in the present action. Under these circumstances, we think that the court may, in its discretion, assume jurisdiction of the subject-matter and settle the uncertainty which exists. (James v. Alderton Dock Yards, 256 N. Y. 298; Post v. Metropolitan Casualty Ins. Co., 227 App. Div. 156; affd., 254 N. Y. 541; Baumann v. Baumann, 222 App. Div. 460.)
We are not called upon to state what the answer to the question in dispute should be. We leave that to be decided by the court when the case shall be brought on for trial. We are simply holding on this appeal that the motion of the defendants Sarachan to dismiss the complaint should not have been granted.
All concur. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
