Church v. Maloy

16 N.Y. Sup. Ct. 148

Opinion

BakNaed, P. J.:

There was no legal application of the $500 paid by defendant Maloy to plaintiff for the extension of time of payment of the mortgage. It was not designed by the parties to be a payment on the mortgage. No notice was given by either party applying it. It was simply a sum of money paid by a mortgage debtor to obtain lenity. The,law will not permit the holder of the mortgage to keep it. He cannot in justice and equity retain it. The debtor may sue for the money or have it applied on the mortgage. The law does not, however, apply it unless he asks its application. By the non-payment of the half-yearly interest which became due November 1, 1875, and its continuance in arrears for more than twenty days thereafter, the whole principal and interest became due by the terms of the bond. No application of the $500 had then been made. The defendant, by his answer, asks to have it applied after suit brought on account of the interest due first. The referee allowed it on the principal and interest. This was the right disposition of it. (Hartley v. Tatham, 1 Keyes, 222.)

Judgment affirmed, with costs.

Present — BaeNAkd, P. J., Pbatt and DyKMAN, JJ.