Millburn Land Corp. v. Stearns , 38 N.Y.S.2d 1 ( 1942 )

Plaintiff, being the owner of premises subject to the lien of a mortgage held by defendants, seeks in this action to compel defendants to execute and deliver a release of a portion of the mortgaged premises- pursuant to the provisions of a release clause contained in the mortgage. Since the aid o£ equity is affirmatively invoked by plaintiff to secure the extinguishment of the mortgage lien upon a portion of the premises, the plaintiff must itself do equity, and the failure of the plaintiff to allege facts showing that the tender has been kept good either by defendants’ acceptance of the tender or by deposit of the release price in court, renders the complaint insufficient in that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action. (Werner v. Tuch, 127 N. Y. 217, 223; Tuthill v. Morris, 81 N. Y. 94; Halpin v. Phenix Ins. Co., 118 N. Y. 165.) Murray v. Harbor & Suburban B. & S. Assn. (91 App. Div. 397; affd., 184 N. Y. 596) cited by the respondent, is not in conflict with these authorities. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.