Opinion
February, 1926.
Order of the County Court of Queens county reversed upon the law and the facts, with ten dollars costs and disbursements, and motion to vacate judgment granted, with ten dollars costs. The action was brought to foreclose a mortgage by reason of the non-payment of an installment of principal. It is undisputed that defendant subsequently paid the installment, and large sums in addition thereto, and that the plaintiff agreed that the action should be "dropped." Under these circumstances the plaintiff's right to prosecute this action was lost. If any subsequent default occurred, the plaintiff would be obliged to bring a new action thereon. ( Hack v. Goldblatt, 104 Misc. 249, Special Term, Monroe County, Rodenbeck, J.; Rathbone v. Forsyth, 171 App. Div. 26.) Kelly, P.J., Jaycox, Manning, Young and Kapper, JJ., concur.