Richie v. Phillebaum

The original agreement between the parties was novated when the parties entered into the subsequent agreement. Clapp v. Hawley, 69 N.Y. 625. Under the later agreement, the Richies agreed within 90 days after receipt of payment for the gravel to re-finance the obligation created by the first agreement. It is the failure to re-finance that constitutes the breach upon which the present suit is based. I entertain serious doubts that a suit for foreclosure of the original agreement has proper predicate in these circumstances.