Abrahams v. Claussen

52 How. Pr. 241

• Court: New York Supreme Court
• Decided: October 15, 1876
• Status: Published

Opinion

Van Vorst, J.

— The case of The Real Estate and Trust Company agt. Keech (7 Hun, 253) is adverse to the defense of usury in this action. It is there held, that where a mortgagor paid to a holder of the mortgage $1,000 in addition to the lawful interest, to secure an extension of the time within which to pay the debt secured by the mortgage, that the security given for the original debt was not impaired by such payment, but the amount so paid should be applied as a payment on the mortgage debt.

By the payment of $100, besides the lawful interest, the mortgagor secured an extension of the mortgage for three years. It is claimed by the counsel for the mortgagor that the extension postpones the payment of interest as well as principal for the period named. I think this is a strained and unnatural construction. The bond accompanying the mortgage requires the interest to be paid semi-annually. The receipt for the payment of the $100 does not refer to the bond. I think the time for the payment of interest remains unaltered; and there being a default in the payment of an installment, according to the terms of the bond, the action for foreclosure is properly brought, and there should be judgment for foreclosure and sale.