Second American Building Ass'n v. Platt
The Superior Court of New York City
This action comes before the court, on a demurrer to the complaint, in an action to foreclose a mortgage. The mortgage was given to secure certain monthly payments stipulated to be made by the defendant, as a member of the association, and it contained a provision that if default should be made “ in the said monthly payments, for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged…
Read the full summary
This action comes before the court, on a demurrer to the complaint, in an action to foreclose a mortgage. The mortgage was given to secure certain monthly payments stipulated to be made by the defendant, as a member of the association, and it contained a provision that if default should be made “ in the said monthly payments, for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged premises at public auction, according to the statute. The complaint averred that default had been made in monthly and…
1Opinion of the Court
Duer, J.,
held, that the provision in the mortgage was not to be limited to an exercise of the power of sale by advertising, ac*676cording to statute, but by its reasonable interpretation, operated as an extension of the term of credit, so as to preclude the association from commencing any action upon the mortgage until the expiration of six months from the time any monthly payment, remaining unpaid, had become due; and hence, that the complaint, as it did not allege nor show that there had been a default in any one monthly payment for that period, was fatally defective.
Demurrer allowed, with…
2Cited by2 opinions
- Rochester Savings Bank v. WhitmoreAppellate Division of the Supreme Court of the State of New York · 1898
- Central Trust Co. v. New York City & Northern RailroadNew York Supreme Court · 1884