Majority
p. 191Exchange Fire Insurance Company of New York, Resp’t, v. John G. Norris et al., App’lts. (Supreme Court, General Term, First Department, Filed December 15, 1893.)
Headnote
1. Pleading—Frivolous.When it requires argument to determine whether an answer sets up a good defense or not, the pleading is not frivolous.
2. Mortgage—Tender.
In order to extinguish a mortgage lien, the tender need not be kept good.
Appeal from a judgment in favor of plaintiff on the ground of the frivolousness of the answer.
The answer is as follows:
“ The defendants Albert I. Sire and Meyer L. Sire, separately answering the complaint herein, respectfully show:
“ (1) They admit all the allegations of said complaint, except-that they deny 1 that the interest upon said bond and mortgage, which became due and payable on the 1st day of November, 1892, has never been paid; that more than thirty days had elapsed since the same became due and payable; that the plaintiff has elected, and now elects, to deem the whole principal sum to be immediately due and ‘payable, and there is now justly due to plaintiff upon the said bond and mortgage the principal sum of $32,000, together with interest thereon from the 15th day of September, 1892,’ except as hereinafter alleged. •
“ (2) And. further answering, defendants allege that on or about the date of the execution and delivery of the bond and mortgage referred to in said complaint, Mr. 0. AY. Bennett, the attorney acting on behalf of the plaintiff in closing the loan, represented to Albert I. Sire, acting on behalf of the mortgagor and defendant herein, John Gr. Norris, that the first installment of interest upon the mortgage, falling due by the terms thereof the 1st day of November, 1892, need not be paid until the second installment of inter
p. 192
est became due, to wit, May 1, 1893; and the said attorney further represented that due notice to pay all interest would be sent said John Gr. Norris on or about the last-named date, and before he would have to pay the same.
“(3) That on the 4th day of May, 1893, the defendant and mortgagor, Norris, received a written notice from the plaintiff, mailed the day previous, that interest amounting to $1,000 was due on the mortgage, and requesting him to call and pay the same, and that on the 3d day of June, and within thirty days from the receipt of said notice, said John Gh Norris, relying upon said representations and notice, and upon the thirty-days clause contained in the mortgage, by Albert I Sire, his attorney, duly tendered to the plaintiff before suit brought the said amount, of interest due, which plaintiff refused to accept.
“(4) That on said 3d day of June, 1893, and after the said tender of interest as aforesaid, the plaintiff, without heeding the same, began the present action of foreclosure, and refused to withdraw the same, although said defendant Norris, immediately after the commencement thereof, offered again to pay said interest, together with all costs of the action ; and on the 16th day of June, 1893, duly made a retender to the plaintiff, and also to its attorney, of said interest, amounting to $1,000, and also interest on that amount, for delay, together with all costs of this action, and all of which was refused.
“ (5) And defendants further allege that they are, both in behalf of themselves and of said John Gr. Norris, mortgagor, still ready and willing to pay plaintiff all of said interests and costs, for which defendants contend that there has been no default in payment of the said interest, or any breach of the conditions of the mortgage; and they further contend that, if there has been any default or breach of such conditions, the same is wholly technical in character, not injurious to the plaintiff, and such as a court of equity ought to relieve against. Wherefore defendants pray that this action may be dismissed, with costs, and for such other relief as to the court may seem meet.”
A. I. Sire, for app’lts; Edward F. Brown, for resp’t'.
The complaint in this action is the ordinary pleading upon the part of the plaintiff for the foreclosure of a mortgage upon failure to pay interest when due. The answer alleged an agreement extending the time of payment, and also a tender to the plaintiff before suit brought of the whole amount of interest due, and a refusal dpon the part- of the plaintiff to accept. It seems to be apparent that the learned judge who heard the motion in the court below did not think the answer was frivolous, because he thought it necessary to write quite alengthy opinion for the purpose of showing that.no defense was set up by the defendant. It is also equally true that the learned counsel for the respondent does not think that the answer is frivolous, as he has submitted lengthy points upon the question as to whether any defense is set up in the answer or not. It has been too often determined to require demon.stration here that, if the question as to whether an answer sets up a
p. 193
defense or not requires argument, the pleading is not frivolous. The ground upon which the respondent claims that the tender was a nullity was because it was not kept good, and the money paid into •court. That this is not necessary in order to make a tender extinguish the lien of a mortgage was held so far back as the case of Kortright v. Cady, 21 N. Y., 343 . And it may very well be argued that by the tender of this interest, which was due at the time of the tender, and which was all that was due, because there was no evidence of any election at that time upon the part of the plaintiff the lien of the mortgage to that extent may have been extinguished. In such cases it is not necessary in order to defeat the lien, that the tender should be kept good. It was„ held in Cass v. Higenbotam, 100 N. Y., 248 -253, that where a tender has only the effect to extinguish the lien, and not to discharge the debt, bringing the money into court is not required. The defendant undoubtedly set up a defense of greater gravity than he imagined at the time he pleaded it. It seems to us that the pleading is clearly not frivolous, and the order should be reversed, with ten dollars ■costs and disbursements.
All concur.