Majority
p. 420Anna M. House, Resp’t, v. James O. Eisenlord, adm’r, etc., App’lt.[1] (Court of Appeals, Filed June 1, 1886.)
Headnote
Costs—In equity action in discretion of court.Ambrose Eisenlord, mortgagor, paid plaintiff’s agent $70 of $87.50 due
p. 421
as interest, and offered to get the $17.50 balance due, but the agent said he might take his time. The thirty days haying elapsed plaintiff foreclosed under the “interest clause,” although she had accepted the $70 on account. The court found that as no sufficient tender had been made, the foreclosure was legal for $17.50, and refused to allow costs to plaintiff. , Defendant now claims that the complaint should have been dismissed, with costs to him Held, that as there was no valid extension of time there was no waiver or estoppelwhich precluded the plaintiff from bringing this action, and the court could exercise its discretion, both as to dismissing the complaint, and as to the costs.
Appeal from judgment of general term supreme court, third department, affirming judgment of special term in action to foreclose a mortgage by Ambrose J. Eisenlord, and on his death appeal continued by the present appellant, his administrator.
J. E. Dewey, for appellant; N. C. Moak, for respondent.
There was no valid extension of time for the payment of the small balance of interest, and there was no waiver or estoppel which precluded the plaintiff from bringing this action. While, under the circumstances of this case, a court of equity, in the exercise of its discretion, might have dismissed plaintiff’s complaint, it was not bound to do so, and hence there was no error of law in refusing to do so. Whether the defendant should have costs was in the discretion of the court below, and that discretion is not subject to review here. The rights of the defendant were sufficiently protected by the denial of costs to the plaintiff, and the form of the foreclosure entered.
The judgment should be affirmed, with costs,
All concur.