Trenor v. Le Count ( 1895 )

CULLEN, J.

This action is to foreclose a mortgage which contained the usual 30 days’ interest clause. Default having been made in the payment of the interest for more than 30 days, the plaintiff elected that the principal should become due, and instituted this foreclosure. The defendants, on affidavits charging the plaintiff’s attorney with unfriendly feeling towards the defendants, and a desire on his part to harass them, applied for an order staying the action. On that application the court made an order directing the action to be discontinued, upon defendants paying to the plaintiff the interest in default and the costs of the action to the time of the order. From that order the plaintiff appeals. We think the order was erroneous. There was no charge of fraud or collusion, upon the part of the plaintiff or his attorney, by which the defendants were prevented from paying the interest or misled in that respect. In the absence of conduct of that character, the motives of the plaintiff or his attorney in foreclosing the mortgage are immaterial. The plaintiff is simply enforcing his legal right. The defendant asserts in her affidavit that after the default the plaintiff promised ■to receive the interest from her if paid by a specified time. This promise the plaintiff denies. The agreement would seem invalid, as without consideration, but, whether valid or not, its force and effect could only be determined by a proper plea in that respect, and the trial of the issue raised by the plea. Bennett v. Stevenson, 53 N. Y. 508. The order appealed from should be reversed, and motion denied, with $10 costs and disbursements.