Germania Life Insurance v. Potter , 107 N.Y.S. 912 ( 1907 )

Newburger, J.

Action for the foreclosure of a mortgage. The mortgage contains the following clause: “And the said, party of the first part does furthermore covenant and agree, until full payment of the amount hereby secured, to bear, pay and discharge, as soon as the same may become due and payable, all taxes, charges and assessments which may be imposed by law upon the said mortgaged premises, or on any part thereof, and in default thereof that it shall and may be lawful for the said party of the second part to pay the amount of any such tax, charge or assessment, with any expense attending the same, and any amount so paid the party of the first part covenants and agrees to repay to the said party of the second part, with interest thereon, and the same shall be a lien on said premises and be secured by the said. bond and these presents, and the whole amount hereby secured, if not then due, shall thereupon, if the said party of the second part so elect, become due and payable forthwith.” This clause provided that the mortgagor should pay and discharge the taxes as soon as they became due and payable. Section 914 of the Greater Hew York charter provides that taxes shall become due and payable on the first Monday of October, and that they shall become liens when they become due and payable. The first Monday of October, 190Y, was on the seventh day of that month. It has been repeatedly held that a covenant in a mortgage as to the payment of taxes is to be enforced the same as the covenant for the payment of interest. As was said by Mr. Justice Van Brunt in O’Connor v. Shipman, 48 How Pr. 138: “ I am unable to discover any difference between a condition relating to principal and interest and one relating to taxes. If it is expressly stated that the whole principal sum shall become due because of the nonpayment of taxes, and taxes are unpaid, and the mortgagee commences his foreclosure on that account, I do not see how the court can relieve the defendant any more than they could'for the nonpayment of interest. It seems to me, therefore, that the plaintiff must have judgment of foreclosure and sale.” It is conceded that the taxes were not paid on the seventh day of October, and that on the eighth day of October the plaintiff paid the same. This action was commenced immediately thereafter, and the summons was served on the seventeenth day of October. On the twenty-fifth day of October defendant, through his attorneys, tendered plaintiffs attorney a certified check for the amount of the taxes, interest thereon and the costs, which was refused by the plaintiff. The tender was not sufficient. The plaintiff in his complaint having elected to consider the whole of the principal due by reason of the failure to pay the taxes, the tender to be a proper one should have been for the whole amount of the principal, interest, taxes and costs. •While my sympathies are with the defendant in this case, I do not see how he can he relieved of the terms and covenants of the mortgage herein.

Judgment for plaintiff.