Boigeol v. Eigabroadt — 72 N.Y.S. 133

Majority

p. 133

(35 Misc. Rep. 606.)

BOIGEOL v. EIGABROADT et al.

(Supreme Court, Special Term, Onondaga County.

July, 1901.)

Headnote

Mortgage—Default in Interest—Election to Foreolosb.

Where a mortgage provides for foreclosure, on option of mortgagee, on default in installment of principal or interest, beginning of action to foreclose is a sufficient election, and the right is not affected by a clause requiring 60 days to elapse after demand and notice* of default in payment of taxes and assessments.

Action by Charles D. Boigeol against Harriet M. Eigabroadt and others to foreclose mortgage. Judgment for plaintiff.

Nottingham, Pierce & Elliott, for plaintiff.

H. & W. Weston, for defendant Duffus.

The clause in the bond and mortgage involved in this suit, providing for a period of 60 days “after notice and demand” before the whole amount conditioned and secured to be paid by the bond and mortgage should become due upon default, relates to default in the payment of taxes and assessments. This requirement of notice and demand does not relate or apply to a default in the payment of the principal or interest agreed to be paid by the bond and mortgage. A default in the payment of any such installment for the period of 60 days makes due the entire amount of the principal and interest, at the election and option of the mortgagee. Such election and option was manifested by the commencement of this suit, and, in accordance with these views, the plaintiff is entitled to a foreclosure of his mortgage for the full amount.

Judgment for plaintiff.