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Second American Building Ass'n v. Platt

12 N.Y. Super. Ct. 675 5 Duer 675 Court At Special Term, Decision date 1856-06-04 English

Delivered by Duer, J.,

Contents

Majority

p. 675
Second American Building Association v. Platt, and others.

Headnote

A provision, in a mortgage given by defendant to the plaintiff, to secure certain monthly payments to be made by him, as a member of the association, to the effect that, if default should be made “ in the said monthly payments for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged premises at public auction, according to the statute, is equally a bar to an action brought within the six months to foreclose the mortgage, as to a proceeding under the statute.
At Special Term,
June 4, 1856.
This action comes before the court, on a demurrer to the complaint, in an action to foreclose a mortgage.
The mortgage was given to secure certain monthly payments stipulated to be made by the defendant, as a member of the association, and it contained a provision that if default should be made “ in the said monthly payments, for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged premises at public auction, according to the statute. The complaint averred that default had been made in monthly and other payments, and that there was due from the defendant the sum of $244.19, but did not aver that any one monthly payment had been due six months. The defendant demurred, on the ground that it did not appear on the face of the complaint, that the plaintiff had any right of action.

held, that the provision in the mortgage was not to be limited to an exercise of the power of sale by advertising, ac

p. 676
cording to statute, but by its reasonable interpretation, operated as an extension of the term of credit, so as to preclude the association from commencing any action upon the mortgage until the expiration of six months from the time any monthly payment, remaining unpaid, had become due; and hence, that the complaint, as it did not allege nor show that there had been a default in any one monthly payment for that period, was fatally defective.

Demurrer allowed, with liberty to plaintiff to amend complaint within twenty days; costs to the defendant, to abide event.