Opinion
December 30, 1909.
Emil Schneeloch [ H. Schieffelin Sayers with him on the brief], for the appellant.
Frederick S. Jackson, for the respondents.
This appeal is by a defendant in an action to foreclose a mortgage upon real estate. The referee to compute allowed interest at the rate of 5½ per centum per annum until September 26, 1907, and interest thereafter at the rate of 6 per centum per annum. The appellant contends that as the rate named in the obligation was 5½ per cent, the allowance of interest at 6 per cent was erroneous. It was expressly agreed in the obligation that the whole of the principal sum should become due after default in the payment of interest, taxes or assessments. There was default in the payment of interest, whereupon the plaintiffs elected on September 25, 1907, that the principal sum should become due and payable immediately. This was their right. ( Noyes v. Clark, 7 Paige, 179; Valentine v. Van Wagner, 37 Barb. 60; Noyes v. Anderson, 124 N.Y. 180; Bennett v. Stevenson, 53 id. 508; Thomas Mort. [2d ed.] § 228.) Thereafter interest was to be cast by way of damages for breach of the contract, and hence at the legal rate. If the obligation had been to pay interest until the principal sum was paid, then the rate determined in the obligation must have obtained until the contract was merged in the judgment. ( O'Brien v. Young, 95 N.Y. 428; Sanders v. L.S. M.S.R. Co., 94 id. 641; Hamilton v. Van Rensselaer, 43 id. 244; Ferris v. Hard, 135 id. 354.)
It is contended that such computation was not within the power of the referee. His duty was to compute the amount due, which of course included any certain interest. This contention involves the proposition that either he could not compute any interest or that he must compute the wrong interest. The referee was appointed to inform the court, and his report must have been submitted to it for confirmation. ( Swarthout v. Curtis, 4 N.Y. 415.) The court thereupon had full control of the question ( Austin v. Ahearne, 61 N.Y. 6), and indeed the appellant asked it to consider it de novo. When the court confirmed the report it became the judgment of the court.
The defendant was credited with $605 paid into court. But it also insists that it is entitled to a further credit also of $605 in consequence of a tender. But that tender was attempted to be made after this action had been begun, and hence the plaintiff was not required to accept it. ( Rosche v. Kosmowski, 61 App. Div. 23; Malcolm v. Allen, 49 N.Y. 448.)
It is further contended that the plaintiffs are not entitled to costs or allowance, in that no costs were included in the "interlocutory judgment" of May 1, 1909. The matter of costs and allowances was wholly within the power of the Special Term when it entered the final judgment of June 5, 1909, and whether it gave costs and an allowance in supposed constraint to the said "interlocutory judgment" or in the exercise of its discretion, we think that its action was right in all respects.
The judgments and the order are affirmed, with costs.
HIRSCHBERG, P.J., WOODWARD, BURR and MILLER, JJ., concurred.
Judgments and order affirmed, with costs.