Newgold v. Woodstock Development Corp.

Aulisi, J.

This is an appeal from an order of the Supreme Court at Special Term, Sullivan County, which denied defendant’s motion for summary judgment that installments of principal and interest totaling $9,500 due under a bond and mortgage were barred by the six-year Statute of Limitations (CPLR 213, subd. 4).

This action was commenced on April 17, 1964 to foreclose a real property mortgage intended to secure a debt of $10,000. The mortgage was executed on April 28, 1953 and contained the following provisions for repayment: “the sum of Ten Thousand ($10,000.00) dollars * * * to be paid Five hundred ($500.00) Hollars quarterly on the 28th days of July, October, January and April of each year, until April 28, 1958 when the entire unpaid principal balance shall become due and payable with interest thereon to be computed from 28th day of April, 1953, at the the rate of five per centum per annum, and to be paid together with each installment of principal according to a certain bond, bearing even date herewith (Italics indicate typewritten portion.) These provisions were incorporated by reference into the accompanying bond. In the case of a normal installment mortgage, as each installment comes due a separate action may be brought to collect it and the Statute of Limitations begins to run on that installment at that time (Ziegler v. Elliott Camp Corp. [Von Sebo], 271 App. Div. 604). If the quoted provisions create such a separate right of action on each installment of principal, recovery for any but the last installment is barred. However, presumably as a result of the omission of the customary words “ then remaining” before “unpaid”, the repayment provisions appear to state both that the principal shall become due in quarterly installments and then, if still unpaid, become due a second time on April 28, 1958. The respondent contends that the omission of the ‘ ‘ then remaining ” was intentional and that the parties did not intend that the mortgagee would have a right of action as to any portion of the principal sum until April 28, 1958 subject to his unexercised option to accelerate to the extent of the unpaid installments.

On this motion for summary judgment, appellant has the burden of showing that the repayment provisions were not ambiguous and that no question of fact as to the intention of the parties was presented (Leefe v. Public Serv. Mut. Ins. Co., 14 A D 2d 951). The credibility of the conflicting affidavits could not be determined on the motion for summary judgment (Di Donna v. Sachs, 9 A D 2d 576). However unlikely respondent’s interpretation of the mortgage may be, a triable issue was presented and the motion for summary judgment was properly denied.

The order should be affirmed.