Schulman v. Manberg Realty Corp.

Headnote

Mortgage — foreclosure — mistake — action to foreclose second mortgage elected to be due for non-payment of installments of principal and interest due under first mortgage ■— defense that failure to pay was through inadvertence and mistake.

Schulman v. Manberg Realty Corp., 222 App. Div. 687 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 19, 1927, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.

The action was to foreclose a second mortgage on the ground that the mortgagor had failed to pay an installment of principal and interest due on the first mortgage which plaintiffs had been compelled to pay and that plaintiffs had elected to declare the second mortgage indebtedness due, under an acceleration clause of that mortgage providing that upon default of payment of principal or interest due under the prior mortgage for ten days, plaintiffs might elect to declare the whole indebtedness payable. The trial court found that failure to pay the installments due on the first mortgage did not arise from willful omission or neglect but was owing to inadvertence, misunderstanding and mistake and that payment of the amounts thereof, with costs and disbursements of the foreclosure action, had been duly tendered.