Majority
p. 78Anna M. House et al., Respondents, v. Joseph A. Eisenlord, Administrator, etc., Appellant. Court of Appeals, June 1, 1886.
Headnote
Affirming 30 Hun, 90 .Mortgage. Extension. Costs.—The payment of nearly all the interest due on a mortgage with an offer to get the small balance due and permission to the mortgagor to take his time, does not operate as an extension of time, nor as a waiver or estoppel which precludes the mortgagee from bringing an action to foreclose the mortgage on default, under the thirty day clause, occasioned by the non-payment of such balance; but the court can exercise its discretion as to dismissing the complaint and awarding costs.
Action to foreclose a mortgage containing the interest clause, for default in paying a balance of interest.
Appeal from a judgment of the general term of the supreme court, affirming a judgment of the special term for foreclosure and sale of the mortgaged premises.
J. E. Dewey, for appellant.
N. C. Moak, for respondent.
There was no valid extension of time for the payment of the small balance of interest, and there was no waiver or estoppel which precluded the plaintiff from bringing this action. While, under the circumstances of this
p. 79
case, a court of equity, in the exercise of its discretion, might have dismissed plaintiff’s complaint, it was not bound to do so, and hence there was no error of law in refusing to do so. Whether the defendant should have costs was in the discretion 'of the court below, and that discretion is not subject to review here. The rights of the defendant were sufficiently protected by the denial of costs to the plaintiff, and by the form of the foreclosure judgment entered.
The judgment should be affirmed, with costs.
All concur.