Hamilton Building Ass'n v. Reynolds — 12 N.Y. Super. Ct. 671

Majority

p. 671

The Hamilton Building Association v. John M. Reynolds.

Headnote

When a complaint, filed by a mortgagor, to set aside a mortgage, has been dismissed upon pleadings and proof, he is estopped from disputing its validity in a suit against him for its foreclosure.

A mortgage to a building association in the usual form, is a valid security only for the monthly payments stipulated to be made, not for fines and other dues.

At Special Teem,

June, 1856.

Before Duer, J.

On foreclosure of mortgage—the cause was heard upon pleadings and proofs—and the case, on the part of the plaintiff, as stated in the complaint, being proved, it was insisted, on the part of the defendant, that the provisions in the mortgage designed to secure monthly payments and fines, and the disposition of any surplus from the sale of the mortgaged premises were illegal and void, and that he was entitled to be relieved, and to have the mortgage cancelled, upon the repayment, with interest, of the sum originally advanced to him by the company.

To repel this defence, the plaintiff gave in evidence the record of a judgment in the Supreme Court, dismissing the complaint of the defendant in a suit instituted by him against the association for the purpose of obtaining exactly the same relief that he now claimed, and it appeared from the record, that the judgment was rendered

p. 672

upon the ground, that upon the pleadings and proofs, the plaintiff, (the present defendant,) was not entitled to the relief he demanded.

Held, that this judgment, as it was rendered in a suit betweeen' the same parties, and involving the precise question now at issue, was conclusive between the parties, and created an estoppel from which it was beyond the power of the court to release the defendant. That the mortgage must, therefore, be adjudged to be valid, but that, in the opinion of the court, it was a valid security only for the stipulated monthly payments, and not for fines or other dues. Judgment would therefore be given only for the amount of those payments proved to be in arrears.

Judgment for plaintiffs accordingly.