Tallman v. Cook — 31 N.Y. Super. Ct. 550

Majority

p. 550

JOHN H. TALLMAN, Plaintiff and Respondent, v. MARTIN R. COOK, impleaded, &c., Defendant and Appellant.

Headnote

A motion to stay proceedings in an action to foreclose a mortgage on the ground of an equitable defence, is addressed to the discretion of the court. It will not, in gen - eral, be granted, where such equitable defence is set up in the answer, and forms the only issue.

Where a mortgage contained a clause that, if the interest remained unpaid for thirty days, the whole principal should become due, at the option of the mortgagee ; and the defendant, by answer, set forth reasons for not paying the interest, which might relieve the forfeiture—Held^ not error to deny a motion for a stay.

Whether the order denying the motion is appealable, quere. Per Monell, J.

Before Monell, McCunn, and Fithian, JJ.

[Decided October 30, 1869.]

Appeal from an order made at Special Term by Mr. Justice Jones, denying a motion to stay the proceedings in the action.

The action was to foreclose a mortgage made by Jacob B. Tallman, one of the defendants, to John P. Hays, and assigned to the plaintiff. The principal secured was not due; but the mortgage contained a clause by which it was agreed that, if the interest should- remain unpaid for thirty days after it had. become due, the whole of the principal should, at the option of the mortgagee, become immediately payable. The premises had been conveyed to the defendant Cook, subject to the mortgage.

The complaint alleged non-payment of the interest, and the lapse of thirty days after it. had become due, and the plaintiff elected to have the whole principal to be due and payable.

The answer of the defendant Cook alleged that, when he purchased the premises, Hays had not assigned the mortgage, and that it was his invariable custom to call at the defendants’ place of business, and collect the interest; that such custom continued to the time of the assignment to the plaintiff, in May, 1869, and that no notice of the assignment was given to the de

p. 551

fendant. The defendant averred readiness to pay the interest, and alleged his reliance upon the above-mentioned custom as a reason for not paying the interest within the thirty days.

Upon these facts, the defendant Coolc moved, at Special Term, for a perpetual stay of proceedings in the action, upon payment of the interest due.

The motion was denied, and the defendant appealed.

Mr. James C. Carter for appellant.

Mr. James M. Smith for respondent.

By the Court:

The ground upon which the motion in this case was founded is set up in the answer, and forms the only issue to be tried in the action.

Without, therefore, determining whether such ground is sufficient to relieve the mortgagor and his assigns from the consequences of the omission to pay the interest within the stipulated time; and also without denying the power of the court upon a motion in a suitable case to restrain' thé prosecuting of a foreclosure, we are yet of the opinion that the learned justice decided correctly at Special Term, in leaving the question of the sufficiency of the ground for equitable relief in this case to be determined at the trial.

The application of the principles of equity are largely, if not wholly, in the discretion of the court; and in the exercise of such discretion, appellate courts, as a general rule, will not interfere ; and it may very well be doubted whether an order made upon a motion at Special Term, refusing equitable relief, is even appealable. It may be otherwise, where relief is granted and such relief, in effect, determines the action.

But as the defendant in this case is merely sent from one branch of the court to another branch, to obtain the same relief, he can have but small cause to complain.

The order should be affirmed, with costs.