Church v. Kidd

Headnote

Payments — application of — interest — when allowed.

Kidd and Cagger held certain manorial leases, as trustees, to secure the payment of advances made thereon by certain of the defendants, after the payment of which the leases were to be assigned to the plaintiff. Philip Church took a subsequent lien on them for $45,000, which was afterward assigned to Kidd and Cagger, under an agreement authorizing him (Philip Church) to redeem within ten years on payment of $18,000 and interest, to be compounded semi-annually, with annual rests. The equity of redemption was subsequently assigned by Philip Church to the plaintiff.

In this action, brought by the plaintiff to procure an assignment of the leases, upon payment of what was due from him, an accounting was had; the plaintiff insists that the referee erred in not applying payments, made by him to Cagger, first upon the Philip Church contract, so as to stop a harsh rate of interest. Held (1), that, as plaintiff was under no obligation to pay the amount secured by the Philip Church contract, under the assignment of the latter’s equity of redemption, Cagger had no right to apply the money received by him, as trustee, inpayment thereof; (2), that Cagger had an absolute right to appropriate the moneys received or collected toward the payment of the first and oldest lien; and that plaintiff had no right, equitable or otherwise, to require payments received by Cagger, in the ordinary business of the trust, to be applied toward the extinguishment of a collateral debt, secured by a second lien upon the trust property in his hands.

The referee allowed Cagger interest' upon the amounts due to him for legal services. Held, that this was proper. Where services in a particular case are rendered, or where, by contract of the parties, the amount is payable, or where it is liquidated by the fee bill, interest must be allowed upon the debt. {Adams v. Port Plain BanJc, 36 ET. Y., 255; Hadley v. Ayers, 12 Abb. [ET. S.], 246; Mygatt v. Wilcox, 45 N. Y., 306 .)

Appeal by the plaintiff from an order of the Special Term, confirming the report of the referee in an accounting.

This action was brought to procure the reassignment of certain leases to the plaintiff, upon the payment by him of the amount due to the defendants. The opinion of the General Term upon an appeal from the judgment, under the provisions of which the order of reference was made, is reported in 10 Supreme Court (3 Hun), 254.°