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Dwight v. Webster

32 Barb. 47 Court N.Y. Sup. Ct. Decision date 1860-01-02 English

Delivered by Leonard, J.

Contents

Majority

p. 47
Dwight vs. Webster and others.

Headnote

In an action brought to foreclose a mortgage containing a clause making the principal due in case of default in paying the interest for a certain number of days, it is not a valid defense, or ground of relief, that the defendants were unable to find the holder of the mortgage, until after the time for pay- ■ ing the interest had passed; where the answer does not allege any trick or fraud on the part of .the plaintiff, to prevent the payment of interest.
THIS was a motion to open and set aside a judgment entered by default, at a special term.

This action is brought to foreclose a mortgage, containing a clause making the whole principal sum due in case the interest shall remain unpaid for a certain number of days after it has become due. The complaint alleges a default in the payment of the interest, under this clause. The answer admits this default, but alleges, as an excuse, that the defendants were unable to find the holder of the mortgage until after the period required for the payment of interest, in order to prevent the whole principal from becoming due, had expired. A judgment by default has been taken, at special term, which the defendants now apply to set aside.

If the answer set up a valid defense, the motion ought to prevail. The answer does not allege any trick or fraud on the part of the plaintiff, to prevent the payment of interest. It simply presents the misfortune of the defendants in being unable to find the plaintiff, in season. This does not present

p. 48
any fault on the part of the plaintiff, which would prevent him from insisting on a fulfillment of the terms of the mortgage. Nor is it such an accident or misfortune as will enable the court to afford the defendants any relief. The case of Ferris v. Ferris ( 16 How. Pr. Rep. 102 ) is decisive of this question.

[At Chambers, New York,

January 2, 1860.

Leonard, Justice.]

It is not necessary to refer to the other facts contained in the affidavits, as the view which I have taken of the answer is conclusive against the legal force of the whole defense.