Blake v. Moore — 32 N.Y. St. Rep. 917

Majority

p. 917

John Blake, Resp’t, v. Anson B. Moore, Impl’d, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Mortgage — Request to mortgagee to foreclose.

If a mortgagor seeks to be relieved from the obligation to pay the mortgage on the ground of a failure of the mortgagee to foreclose after being notified so to do, the evidence of such notice should be clear and conclusive beyond a reasonable doubt.

Appeal by this defendant from that portion of a judgment of foreclosure and sale which adjudged that he is liable for a deficiency.

On June 3, 1882, the defendant, Anson B. Moore, executed to the plaintiff a bond for $22,500, secured by the mortgage in suit, due June 3, 1887.

Shortly after the delivery of the bond and mortgage the defendant Moore conveyed the mortgaged premises to Williams & Guión. The grantees did not assume the payment of the mortgage.

The defendant Moore alone answered, controverting his personal liability for a deficiency. His answer contains two separate defenses. Ho attempt was made upon the trial to substantiate the first defense. His second defense was that shortly after the bond debt became due he notified the plaintiff to enforce payment against the mortgaged premises. In support of this allegation evidence was introduced of an alleged conversation on one occasion, in the street, between defendant Moore and plaintiff. There was conflict of testimony as to this conversation, and the court refused defendant’s request to find that notice had been given by the defendant as alleged.

A. J. Moore, for app’lt; S. P. & J. McL. Nash, for resp’t.

The defense depends upon the question of fact whether the maker of the bond and mortgage notified the mortgagee to proceed promptly to collect the amount due.

The court below refused to find that such a demand was made.

The rule that the findings of a trial court on a question of fact will not be reversed where there is evidence to sustain it is applied with great rigor and requires that the judgment be affirmed. And while it may seem that the conclusion reached below upon

p. 918

the facts was opposed to the weight of evidence, it is plain that a good deal may be said to support the decision there reached.

It is not too much to ask, if a mortgagor seeks to be relieved from the obligation to pay the mortgage debt upon the grounds urged here, .that the evidence shall be clear and conclusive beyond a reasonable doubt.

The court may well desire ^hat the notice to the mortgagee to enforce the debt should be in writing in order that the terms may not be open to dispute.

If the intention of the mortgagor to resist any personal obligation in case the mortgagee does not proceed promptly is clearly expressed in writing, the court would be able to see that the notice was seriously given and should have been seriously regarded.

In the present case the notice is alleged to have been given at a casual meeting on the street, was verbal merely, does not appear to have been repeated or in any way followed up, although one version of the interview seemed to indicate that a further interview would be had. If we endeavor to harmonize the evidence on the theory that each party speaks the truth to the best of his recollection, we should probably believe that at a casual interview some discussion on the subject took place which was not sufficiently clear or definite to impress itself upon the mind of the mortgagee, and which failed- to make him understand that he must elect between immediate action to collect the debt, on the one hand, and a discharge of the personal obligation of the mortgagor upon the other.

Judgment affirmed, with costs.

Barnard, P. J, and Dykman, J., concur.