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Ernst v. Schaack

Appellate Division of the Supreme Court of New York, Second Department
Mar 3, 1947
271 App. Div. 1012 (N.Y. App. Div. 1947)

Opinion

March 3, 1947.


Action to foreclose a mortgage, to which the Statute of Limitations was interposed as a separate defense. Judgment for defendants, insofar as appealed from, reversed on the law, without costs, and the matter remitted to Special Term to enter a judgment in favor of plaintiff for the quarter-annual installments of interest, at the rate of 6% per annum, upon an indebtedness of $1,600, which were due and payable between June 1, 1939, and August 12, 1942, and for foreclosure of the lien of the mortgage for that total amount, without costs. Findings of fact implicit in the determination are affirmed, with the additional finding, however, that a payment on account of interest in the amount of $50 was made by defendants on October 1, 1932. The last payment by defendants on account of interest was made on August 12, 1936, but inasmuch as the instruments sued upon were not under seal, a limitation period of six years was applicable therefrom. (Civ. Prac. Act, § 48; Empire Trust Co. v. Heinze, 242 N.Y. 475; Futherer v. Agnew, 24 N.Y.S.2d 273, affd. sub nom. Futherer v. Angelidis, 261 App. Div. 876; Broward Operating Co., Inc., v. Harding, 167 Misc. 573.) The cause of action, as to principal, therefore, was barred as of August 12, 1942. ( Kirschner v. Cohn, 270 App. Div. 126.) Plaintiff, however, was entitled to recover the installments of interest which were due under the instruments during the period commencing six years prior to commencement of the action on June 1, 1945, and the termination of the limitation period as to principal, or from June 1, 1939, to August 12, 1942. ( Kirschner v. Cohn, supra.) Hagarty, Acting P.J., Carswell, Johnston, Adel and Nolan, JJ., concur.


Summaries of

Ernst v. Schaack

Appellate Division of the Supreme Court of New York, Second Department
Mar 3, 1947
271 App. Div. 1012 (N.Y. App. Div. 1947)
Case details for

Ernst v. Schaack

Case Details

Full title:JOSEPH ERNST, Appellant, v. ALBERT SCHAACK et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 3, 1947

Citations

271 App. Div. 1012 (N.Y. App. Div. 1947)

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