Abramson v. Patts

away the said goods and chattels, and to sell and dispose of the same for the best price she can obtain, and out of the money arising therefrom retain and pay the said sum above mentioned, and all charges touching the same, rendering the overplus, if any, unto her heirs, executors, administrators, and assigns.

The defendant contends that, although she has defaulted in the payment of said first note, a writ of seizure couldl not be issued against said property, for the reason that the conditions of said mortgage or the covenants therein contained do not warrant it. Thus a serious question is presented to me as to whether, when a' mortgage is made in the manner herein described," and a default occurs in the payment of one of said notes, the plaintiff under said mortgage can take possession of said property. The plaintiff contends that irrespective of said mortgage failing to contain a clause “that upon the failure to pay any one of said installments mentioned therein the whole amount, upon default in payment of one of said notes, becomes due immediately,” and cites numerous authorities to uphold his contention; but from an examination of one of them I find that he has not fully read the authority quoted as written by the learned judge. Counsel also cites Baumann v. Cornez, 15 Daly, 450 -452, 8 N. Y. Supp. 480 , 481. Judge Bischoff, in writing the opinion, said:

“A stipulation in a chattel mortgage that upon default in the payment of the sum secured, or any installment thereof, or upon the removal of the chattel without the consent of the mortgagee, the mortgage debt remaining unpaid shall at once become due and payable without demand, and if not paid the mortgagee may proceed to take possession, is not unconscionable, and contravenes no law or rule of public policyand upon such default the mortgagee’s right to possession accrues without prior demand for payment of the mortgage debt. * * * And this mortgage also contained a clause that upon default in the payment of the sum secured or of any part thereof or any of the installments thereof, or in case of any attempt to remove or secrete or to sell or dispose of the mortgaged chattels or any part thereof; * * * also that the mortgagee might, whether any installment was due and unpaid or not, take possession of the chattels at any time and retain the same to his own use and benefit, in which latter case, however, the mortgagee should return to the mortgagor all moneys then actually paid by the mortgagor on account of the mortgage debt, after first deducting from such moneys a reasonable sum for cartage and for the depreciation of the chattels from use.”

The conditions herein above recited, giving unto the mortgagee power to remove and take said property, were, first, upon default in the payment of. the sum secured or of any part thereof, or. second, any of the installments thereof; but the mortgage upon which the motion is predicated contains no such provisions, as the only condition that can be spelled out wherein said mortgagee can seize said property is contained in the following clause, to" wit: “That in case default shall be made in the payment of the said sum above mentioned, then it shall and may be lawful” for the said party "of the first part, etc., to seize said property, which could not mean anything else except upon the failure to pay the principal, $1,300, secured by said notes. Robinson v. Wilcox, 2 N. Y. Leg. Obs. 160 ; Halstead v. Swartz, 46 How. Prac. 289. The breach of the mortgagee’s contract ■does not occur until the last note first, becomes due and pay able,., and the plaintiff cannot, in the absence of a special provision in said mort

gage, be permitted to call the whole amount of the mortgage due upon the ground of an entire breach. A breach of an agreement to pay money in installments is not a breach of an entire contract, and will hot permit recovery of all the damages in advance. Wharton & Co. v. Winch, 140 N. Y. 287 , 35 N. E. 589 ; Moore v. Taylor, 42 Hun, 45 . /j "As provided in said mortgage, until “default shall be made in the payment of said sum mentioned, the mortgagor is to retain and continue Jin the quiet and peaceful possession of said goods and chattels andhtlie full and free enjoyment of the same.” There is no break in the", entire condition, .from the quotation above unto the end. The covenants as to default and peaceable enjoyment follow the former conditions directly, and are part" and parcel thereof. They^ must all be__read together. So reading them, the condition is not "broken until default is made in the payment of the entire sum, namely, $1,300, therein “above mentioned,” when the total becomes absolute. It is upon that default, and that alone, that the right to seize the property becomes absolute. And it is upon that default, and that alone, that the mortgagor loses his right to remain and continue in quiet and! •peaceful possession. This construction is in harmonv with the con-'-, •dition proper and with every one of the sequences which follows. Any j -other construction would be incongruous and vacillating, and would | require the court really to reframe the condition so as to mature the I entire debt upon the nonpayment of any one of the notes. Earle v. Gorham Mfg. Co., 2 App. Div. 460 , 37 N. Y. Supp. 1037 .

For the reasons herein stated, the motion to vacate the writ of { -seizure is granted. /

Motion granted,