Crye cites two New York cases for the proposition that parties having accepted the benefits of a contract may not seek to avoid its terms. Royal Court Realty Co. v. Thomas, 19 N.Y.S.2d 257, 260 (1st Dep't 1940); Pavone v. Aetna Casualty & Surety Co., 398 N.Y.S.2d 630, 634 (Sup. Ct. 1977). These cases are inapposite, as neither invokes estoppel to enforce a contract provision that contravenes public policy.

As so modified, the order, insofar as appealed from, is affirmed, with ten dollars costs and disbursements to appellants. For the period from April 1, 1938, to January 11, 1940, we hold, on the basis of the prior controlling decisions, that interest is payable at the six per cent rate. ( Brighton Operating Corp. v. Morrison, 262 App. Div. 895; Hammond v. Lawrence Investing Co., Inc., 262 App. Div. 900; Royal Court Realty Co., Inc., v. Thomas, 259 App. Div. 313.) For the period from January 11, 1940, the date the city of New York acquired title by condemnation proceedings to a substantial part of the mortgaged premises, to May 15, 1941, the date the city made partial payment of the award in an amount more than sufficient to satisfy the mortgage debt, we hold that the interest payable is at the rate of four per cent. Regardless of the means employed in obtaining the award from the city or the method used in applying it in satisfaction of the mortgage debt, the record leaves no doubt that the respondent trustee actually received from the city its check representing the payment of the award; that upon receipt thereof the respondent trustee delivered to the city a satisfaction of the mortgage debt and surrendered to appellants all the papers evidencing such debt; and that in accordance with the intention of the parties the respondent trustee actually utilized only the award moneys paid by the city to satisfy the mortgage debt. The respondent tru

Considering the objects of the moratorium laws as a whole, it appears that these statutes were not intended to relieve the mortgagor of the obligation to pay the mortgage debt. They merely suspended certain remedies, but did not attempt to impair contractual rights. ( Royal Court Realty Co., Inc., v. Thomas, 259 App. Div. 313.) The public emergency declared by the Legislature (See Laws of 1933, chap. 793) as a reason for passing the moratorium statutes, was the abnormal disruption of economic and financial conditions, and the abnormal deflation of real property values.

Hammond v. Lawrence Investing Co., Inc. ( 262 App. Div. 900) is distinguishable upon the explicit language used in that case. Brighton Operating Corp. v. Morrison ( 262 App. Div. 895) and Royal Court Realty Co., Inc., v. Thomas (259 id. 313) are not in point. There the question involved was the interest rate after the extension agreement had expired.

The complaint states facts sufficient to constitute a cause of action. ( Royal Court Realty Co., Inc., v. Thomas, 259 App. Div. 313, and cases cited; see, also, Brighton Operating Corp. v. Morrison, ante, p. 895, decided herewith.) The questioned clause in the extension agreement in no respect constitutes a waiver prohibited by section 1077-d of the Civil Practice Act. Lazansky, P.J., Taylor and Close, JJ., concur; Hagarty, J., with whom Adel, J., concurs, dissents and votes to reverse on the law the order denying motion of defendants to dismiss the complaint for insufficiency, and to grant the motion.

(See New York Operators v. State Liquor Authority, 285 N.Y. 272.) In our opinion, the order and judgment appealed from declares erroneously the rights of the plaintiff and defendants as to the interest payments provided for in the agreement, which extended, on certain terms, the payment of the mortgage for the period of three years until June 30, 1939. ( Royal Court Realty Co., Inc., v. Thomas, 259 App. Div. 313.) As matter of law, from and after that date, pursuant to the terms of that agreement, the defendants were entitled to interest at the rate of six per cent per annum on the unpaid balance of the mortgage, the respondent owner having failed to pay the balance of the principal due on that date.

It is well settled that a subsequent modification agreement between a mortgagee and a mortgagor or owner of the mortgaged premises modifies the terms of the original mortgage with the same force and effect as if the terms of the modification agreement were originally incorporated in the mortgage. ( Royal Court Realty Co. v. Thomas, 259 App. Div. 313, 316; Mortgage Comm. of State of N.Y. v. Fay, 255 App. Div. 622, 624, affd. 281 N.Y. 637; Tiernan Realty Co. v. Title Guar. Trust Co., 176 Misc. 1071, 1075.)

Hence, plaintiff should be required to pay the interest quarter-annually at the rate of five and one-quarter per centum. The court has not overlooked a contrary holding by the Appellate Division of the First Department. ( Royal Court Realty Co., Inc., v. Thomas, 259 A.D. 313.) There practically the same facts were presented; the provisions of the extension agreement were identical.