Burkard v. Stephan Building & Construction Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Stephen Burkard, fiom an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of July, 1913, denying a motion for the confirmation of the report of a referee.
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Appeal by the plaintiff, Stephen Burkard, fiom an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of July, 1913, denying a motion for the confirmation of the report of a referee. The action was brought to foreclose a mortgage which provided that the whole principal sum should become due and payable at the option of the obligee after default in the payment of interest for thirty days, or after default in the payment of taxes for ninety days after the same became due and payable. It was alleged that…
1Opinion of the Court
Rich, J.: .
The respondent only undertook to pay the interest and costs by May thirty-first, and the plaintiff to postpone further proceedings until such time, and to discontinue the action in the event that the payment was made. The stipulation was without consideration and I believe it to be invalid (Feldman v. Rockford Co., 70 Misc. Rep. 66; 126 N. Y. Supp. 646; Trenor v. Le Count, 84 Hun, 426), but whether valid or invalid its force and effect could only be determined by answer and trial of the issues. (Trenor v. Le Count, supra; Cole v. Hinck, 120 App. Div. 355; 105 N. Y. Supp. 407.) The…
2Cases cited4 opinions
- Odell v. . HoytNew York Court of Appeals · 1878
- Cole v. HinckAppellate Division of the Supreme Court of the State of New York · 1907
- Trenor v. Le CountNew York Supreme Court · 1895
- Feldman v. Rockford Co.New York Supreme Court · 1910