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Cole v. Hinck

120 A.D. 355 Court First Department, Decision date 1907-06-28 English

Delivered by Lambert, J.:

Contents

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p. 355
Julia Cole, Appellant, v. Claus H. Hinck and Others, Respondents.
First Department,
June 28, 1907.

Headnote

Mortgage—foreclosure under provision that principal shall become due on default in payment of interest —,forfeiture —remedy of mortgagor.
When a mortgage provides that the whole principal shall become due on default in payment of interest for five days, the mortgagee may elect to take advantage of the forfeiture clause, and the court is without power to relieve the mortgagor from the effects of his default, when nothing has been done by the mortgagee to render it unconscionable for him to avail himself of the forfeiture.
Moreover, the issue of the mortgagor’s right to be relieved from the forfeiture must be taken by answer and litigated at trial; the court is without power to stay the foreclosure and cancel tlie Us pendens upon affidavits.
■Appeal by the plaintiff, Julia Cole, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1907, resettling a prior order entered in said clerk’s office on the . 25th day of April, 1907, staying the plaintiff’s proceedings herein and canceling the Us pendens and summons.
p. 356
J. J. Karbry O'Kennedy, for the appellant.

The order appealed from, and which practically • disposed of the action, is made in an action for foreclosure of. a second mortgage. This mortgage contained a clause that the whole principal should become due after default in the payment of interest for five days after the same became due. It is conceded that interest became due on the 5th day of March, 1907; that it was not paid on that day, ■and that it was not tendered until the thirteenth day of March, when i’t was refused, as was a like tender, with accumulated interest, on the sixteenth day of March. ■ The plaintiff elected to take advantage of the clause in her mortgage, and the consequence thus produced is not deemed a forfeiture. The result is maturity of the principal debt at the time, not definitely fixed, when the mortgage is made, but specifically stipulated for in that instrument. And in such case the court as a rule will not grant relief to the mortgagor' from the effect of his default when nothing is done on the part of the mortgagee to render it unconscionable for him to avail himself of it. (Noyes v. Anderson, 124 N. Y. 175 , 180 ; Hothorn v. Louis, 52 App. Div. 218 , 224; affd., 170 N. Y. 576 .) ■ The matter now before us is upon affidavits, upon which the learnéd court has stayed the plaintiff and canceled her lis pendens and her summons, thus effectually disposing of the action. We are of opinion that there is no adequate authority in law or equity- for such an order and that it should be reversed. If, the defendants in the action have, a substantial defense in equity to be available, it 'must be presented as an.issue by answer and litigated in the ordinary way.

The order appealed from should be reversed, with ten dollars costs and disbursements!, and the motion denied, with ten dollars' costs. : -

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and .disbursements, and ' motion denied, with ten- dollars costs.

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