Opinion
June 26, 1969
Order entered March 19, 1969, modified on the law to grant summary judgment to plaintiff for the relief demanded in the complaint, and otherwise affirmed, with $50 costs and disbursements to the appellant. The documentary evidence establishes without question that defendant was in default on the mortgage in suit. Plaintiff declared the principal due but consented to withhold foreclosure until further notice. Plaintiff advised that notice would be given unless payments were met, including a service charge not provided for in the mortgage. Thereafter plaintiff gave notice that foreclosure would be instituted unless interest payments at the highest rate allowable by law were made. Defendant refused and this action for foreclosure was instituted. The defenses pleaded are oral representations which are completely belied by the writings. It is quite true that defendant was not required to meet any terms that plaintiff might demand; but it is equally patent that plaintiff could upon given notice institute foreclosure for this reason, or any other, or no reason at all. No issue is presented.
Concur — Stevens, P.J., Eager, Tilzer, Markewich and Steuer, JJ.