Noyes v. . Anderson , 124 N.Y. 175 ( 1891 )

A stipulation that a debt, the payment of which is secured by a mortgage on real estate, shall become due and the security foreclosable, upon the failure of the mortgagor to pay interest as it falls due, or the taxes assessed on the mortgaged premises, is neither a penalty nor a forfeiture, and a court in the absence of fraud on the part of the mortgagee, cannot relieve the mortgagor from the consequences of his neglect to pay according to the terms of his contract. (Jones on Mortgages, §§ 77, 1180, 1181, 1182; Wiltsie on Mort. For. §§ 43, 44, 45, 46, 47; Thomas on Mortgages, § 228, and the cases cited in the sections of the textbooks referred to.) The stipulation gave an extension of credit. Its continuance until one year after defendant's death being made dependent on the non-foreclosure of prior mortgages, the payment of interest within thirty days after maturity, and taxes and assessments within thirty days after the same shall be in arrears. From the failure to pay taxes or assessments the court can no more relieve a party than from the failure to pay interest, which it cannot do in the absence of fault on the part of the mortgagee. (Hale v. Gouverneur, 4 Edw. Ch. 207;Spring v. Fisk, 21 N.J. Eq. 175, 178; Ferris v. Ferris, 28 Barb. 29; Bennett v. Stevenson, 53 N.Y. 508.) It is not asserted that the mortgagee here was in fault. The defendant merely attempts to excuse her neglect. A similar attempt was made in Ferris v. Ferris (supra), but without avail.

All concur with BRADLEY, J., except FOLLETT, Ch. J., and PARKER, J., dissenting, and HAIGHT, J., not sitting.

Order affirmed and judgment accordingly.