Summary
In Church v. Maloy (70 N.Y. 63, 64), in considering a similar question, Judge ANDREWS said: "The agreement for the extension was usurious, and the defendant could immediately have brought his action to recover back the $500, or he had the right in equity to have it applied as a payment on the mortgage."
Summary of this case from Ganz v. LancasterOpinion
Argued May 24, 1877
Decided June 5, 1877
Philip S. Crooke, for the appellants.
Samuel Garrison, for the respondent.
There was no valid extension of the time of payment of the bond and mortgage. The agreement for the extension was usurious, and the defendant could immediately have brought his action to recover back the $500, or he had the right in equity to have it applied as a payment on the mortgage. ( Crane v. Hubbel, 7 Paige, 413; Judd v. Seaver, 8 id., 548; R.E. Trust Co. v. Keech, 7 Hun, 253; 69 N.Y., 248.) The mortgage was due when the usurious agreement for extension was made, and that agreement did not postpone the right of the creditor to foreclose it. ( Vilas v. Jones, 1 N.Y., 274.)
The defendant claimed in his answer to have the $500 applied as a payment on the mortgage, and it was allowed by the referee. This was all the relief to which he was entitled. Assuming that the agreement was binding at the election of the defendant, he disaffirmed it by insisting that the consideration paid should be credited on the mortgage, and having received the credit, he was not entitled to the benefit of the extension. No question arises upon the pleadings. The evidence and proceedings on the trial are not returned, and the only question here is, whether, upon the facts found by the referee, the plaintiff was entitled to judgment of foreclosure. The facts found show that the mortgage was due, irrespective of the special finding that it became due by the default of the defendant in paying the interest due November 1, 1875, for more than twenty days thereafter.
The referee allowed the $500 paid on the agreement for extension, with interest, as a payment on the mortgage, and the whole mortgage being due, it is immaterial whether it was applied generally upon principal and interest, or first to extinguish the accrued interest.
The judgment should be affirmed.
All concur; RAPALLO, J., absent.
Judgment affirmed.