115 N.Y.S. 279 | N.Y. App. Div. | 1909
This is an appeal from a judgment in favor of the defendants in an action brought to foreclose a mortgage. The mortgage stated, and the fact was, that the mortgagees resided at Waterbury in the State of Connecticut/ The mortgage contained a provision that the principal sum should become due in case of default in the payment of interest. The first payment of interest fell due on August 12, 1907. Thirty days after default of payment the plaintiffs elected to call the mortgage. The question presented upon this appeal is whether the interest was payable at the residence of the mortgagees, or whether the defendants may defend upon the ground that they were ready and willing to pay the interest in this State.
Judgment was given for the defendants upon the authority of Hale v. Patton (60 N. Y. 233). In that case the mortgagee was a resident of the State when the mortgage was made,, but was out of the State when the interest came due, and the defendant actually took the money to the plaintiff’s residence in this State, but was unable to find anyone to whom he could pay it. That case, therefore, did not decide the question involved in this. The respond
The precise question here, as applied to the right to call the principal of a mortgage for failure to pay interest, does not appear to have been decided in this State; but the cases dealing with the place where a demand has to be made on a maker to charge the indorser of a promissory note, are somewhat. analogous. Where the maker had a known residence in another State when the note was made, and that residence remained unchanged, the demand had to be made there. (Taylor v. Snyder, 3 Den. 145 ; Spies v. Gilmore, 1 N. Y. 321); but where the maker resided in the State when the note was made and subsequently removed therefrom, presentment and demand were excused. (Foster v. Julien, 24 N. Y. 28; Adams v. Leland, 30 id. 309.)
The general rule that where no place of payment is specified the debtor must seek the creditor, is unquestioned. That rule, of course, is based on the presumed intention of the parties. If they wish a particular place of payment other than the residence of the creditor, they must specify it in the contract. Where the creditor resided in the State when the contract was made it may well be presumed that payment within the State was intended by the parties; hence the rule that the debtor does not have to follow him out of the State. But where the creditor has a known residence in another State when the contract is made, the debtor should expressly stipulate for a place of payment within the State, if he does not wish to
The judgment must be reversed, with costs ; and as the facts cannot be changed, an' interlocutory judgment should be'entered. As the amount due has to be ascertained and the question of allowances decided, the case should be remitted to the Special Term.
Woodward, Jenks, Gaynor and Rich, JJ., concurred.
Judgment reversed, with costs, interlocutory judgment directed in favor of the plaintiffs, and the case remitted to the Special Term.