51 N.Y.S. 1048 | N.Y. App. Div. | 1898
The moving papers disclose that the mortgages which are the subject of foreclosure by their terms became due and payable on the 24th day of February, 1898, at which time there was due and unpaid upon each the sum of $8,500, with interest thereon from August 24, 1897. It further appears that the persons who executed the mortgages are-pecuniarily irresponsible, and that the premises are not sufficient in value to pay the mortgage liens thereon. Default has been made in the actions by the mortgagors, and the only person who interposes an answer is a purchaser from the mortgagors, and the owner of the equity of redemption. In and
The letters which passed between the mortgagor and the owner of the equity of redemption contained a proposal to extend the time of payment of the mortgages for one year by the mortgagee, and the acceptance of such extension upon the part of the owner of the equity of redemption. These letters, therefore, contained material stipulations of the parties that the time for the payment of the mortgages should be extended for one year, and such stipulations were binding upon the parties thereto. It is the general rule that contracts under seal cannot be modified or released before breach by an unexecuted agreement. Farrington v. Brady, 11 App. Div. 1, 42 N. Y. Supp. 385. Such rule, however, is subject to an exception in respect of the time of performance (Homer v. Insurance Co., 67 N. Y. 478), where it is said by Judge Allen:
“The time for the períomiance of contracts by specialty, as well as simple contracts, may be extended by parol, and when so extended it is as if the extended time was written in and made a part of the original contract, every other provision remaining intact, and to be carried out with the single modification as to time.”
This doctrine proceeds upon two theories: First. That the promises contained in the agreement of extension being mutual in character, the one is a consideration for the other, and, even though there be no express promise by one, the agreement to forbear raises an implied promise on the part of the other party. Wyman v. Insurance Co., 119 N. Y. 274, 23 N. E. 907. As applied to the present case, the proposal to extend by the mortgagee, and the acceptance by the owner of the equity of redemption of such proposal, created the contract that demand of payment of the principal of the mortgages would not be made, and that payment could not be, unless the mortgagee consented, until the expiration of the extended time of payment. The acceptance of the proposal implied such promise upon the part of the owner. Second. It is the general rule that he wrho permits a thing to be done shall not avail himself of any benefits by nonperformance which has been occasioned by his act. Upon this principle has arisen the doctrine of waiver and estoppel. It finds application here for the reason that by virtue of the arrangement to extend the time of payment the owner has been led into the belief that payment would not be demanded, and thereby was induced to forego making provision to meet the payment which would otherwise 'have fallen due. Such is the allegation contained in the answer of the defendant, which is to be regarded as true upon this application. Whether the act of the mortgagee is to be denominated a waiver of the time, or he is held to be estopped by reason of the promise and its acceptance, is of small matter. The result is the same, and both may be said to. follow as a consequence of the act.
The order should be reversed, with $10 costs and disbursements, .and the motion for a receiver granted. All concur.