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Trenor v. Le Count

65 N.Y. St. Rep. 610 Court N.Y. Gen. Term Decision date 1895-02-11 English

Delivered by Cullen, J.

Contents

Majority

p. 610
John H. Trenor, App’lt, v. Fannie A. Le Count et al., Resp’ts.
(Supreme Court, General Term, Second Department,
Filed February 11, 1895.)

Headnote

1. Mortgage—Foreclosure—Defense.
Where the mortgagee elects that the principal of the mortgage should become due on default in the payment of interest under the usual interest clause, and institutes a foreclosure action, the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial, in the absence of any fraud or collusion on the part of either, whereby the mortgagor was prevented from paying the interest or misled in that respect.
2. Same—Agreement to waive default.
In case of such default, a promise, subsequently made, to receive the interest, if paid in a specified time, is void for want of consideration.
p. 611
Appeal from an order, directing the discontinuance of the action.
George G. Banks (Henry C. Henderson, of counsel), for app’lt; Cornelius E. Keene, for resp’ts.

This action is to foreclose a mortgage which contained the usual thirty days’ interest clause. Default having been made in the payment of the interest for more than thirty days, the plaintiff elected that the principal should become due, and instituted this foreclosure. The defendants, on affidavits charging the plaintiff’s attorney with unfriendly'feeling towards the defendants, and a desire on his part to harass them, applied for an order staying the action. On that application the court made an order directing the action to be discontinued, upon defendants paying to the plaintiff the interest in default and the, costs of the action to the time of the order. From that order the plaintiff appeals. We think the order was erroneous. There was no charge of fraud or collusion, upon the part of the plaintiff or his attorney, by which the defendants were prevented from paying the interest or misled in that respect. In the absence of conduct,of that character, the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial. The plaintiff is simply enforcing his legal right. The defendant asserts in her affidavit that after the default the plaintiff promised to receive the interest from her if paid by a specified time. This promise the plaintiff denies. The agreement would seem invalid, as without consideration, but, whether valid or not, its force and effect could only be determined by a proper plea in that respect, and the trial of the issue raised by the plea. Bennett v. Stevenson, 53 N. Y. 508 . The order appealed from should be reversed, and motion denied, with $10 costs and disbursements.

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