Opinion
Argued September 23, 1873
Decided October 7, 1873
H.B. Hubbard for the appellant.
Julien T. Davies for the respondent.
The order of the General Term determines the action, and prevents a judgment from which an appeal could be taken. It is, therefore, appealable to this court. (Code, § 11, sub. 2.)
The complaint alleges that the defendant omitted to pay the interest on the mortgage, which became due September 1, 1872, and in substance that the same remained unpaid and in arrear for thirty days; and that pursuant to the conditions of the bond, making the entire principal due upon the happening of such event, at plaintiff's election, he elected to have the whole sum secured by the mortgage paid at once, and demands judgment to that effect. As a defence, the defendant in his answer alleges that he tendered such interest to the agent of the plaintiff, and denies that the principal had become due according to such condition. This presented an issue for trial, pursuant to the provisions of section 254 of the Code. The affidavits made by the defendant, upon the motion in the County Court for a perpetual stay of proceedings, contained nothing which, if constituting a defence, would not have been equally available upon the trial. They contained nothing tending to show any fraud or improper conduct by the plaintiff or his agent. All that they did was to insist that the interest had remained unpaid and in arrear for thirty days, and that as a consequence, by virtue of the condition of the bond, the principal had become due. In this respect the case differs from Noyes v. Clark (7 Paige, 179). There the stay was ordered upon the ground that the plaintiff and his assignor had colluded to prevent the mortgagor from ascertaining who was then the owner of the mortgage, and thus prevented him from making payment to the right person within the time fixed by the condition; and that under such circumstances it was inequitable to permit the assignee to take advantage of the breach of the condition.
In the present case, the only questions were whether a tender had been properly made at any time, and, if so, whether it was made within the time prescribed by the condition. There is no reason why these questions should not be determined upon the trial of the action, as provided by the section of the Code, supra. The County Court, upon this ground, properly denied the motion. This makes it unnecessary to determine the merits of the motion.
The order of the General Term must be reversed and that of the County Court affirmed, with costs.
All concur, except CHURCH, Ch. J., dissenting.
Ordered accordingly.