Opinion
January 25, 1994
Appeal from the Supreme Court, New York County (Seymour Schwartz, J.).
After a full hearing, the Special Referee found that the defendant's tender of a check at the closing on March 23, 1990 was of a sum sufficient to cover the outstanding indebtedness under plaintiffs' mortgage. Plaintiffs' refusal to accept this sum results in forfeiture of any additional interest under the mortgage since under the circumstances herein defendant kept the tender good by depositing a check with the title company for the new lender and by then attempting to deposit that sum with the court in the then pending foreclosure action. The equitable principles governing tender and the efforts to keep tender good preponderate in favor of the defendant in this case and accordingly it would be unjust for plaintiffs to recover interest past the date of tender (cf., Geary v. Dade Dev. Corp., 29 N.Y.2d 457, 461-462).
We have considered plaintiffs' remaining contentions for additional interest and additional counsel fees and find them to be without merit.
Concur — Rosenberger, J.P., Wallach, Kupferman, Ross and Tom, JJ.