Elltan Realty Co. v. Irving Trust Co.

252 A.D. 882, 300 N.Y.S. 1, 1937 N.Y. App. Div. LEXIS 6670

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1937
• Status: Published

Opinion

— In this action for a declaratory judgment, judgment, referred to in the record as “ order and judgment,” denying the plaintiff’s motion to strike out the first affirmative defense contained in the defendant’s answer and granting the defendant’s cross-motion for summary judgment unanimously affirmed, with ten dollars costs and disbursements. We are of opinion that the agreement made by and between the parties hereto on the 21st day of February, 1935, reducing the rate of interest as provided by the mortgage, a lien on real estate owned by the plaintiff and maturing on the 18tn day of September, 1936, from five and one-half per cent to four per cent per annum until the 1st day of September, 1936, is unaffected by the provisions of section 1077-ec of the Civil Practice Act in its original and amended form. The agreement provided for a reduction of the interest rate only during a part of the mortgage period, after the expiration of which and up to the date of maturity of the mortgage the original terms of the mortgage determined the rate of interest, and, therefore, the rate of interest payable at the expiration of the term of the mortgage was five and one-half per cent per annum. The reduction agreement does not purport to fix the rate of interest up to the maturity of the mortgage or to extend the payment of the mortgage beyond the due date. Present • — ■ Hagarty, Carswell, Davis, Johnston and Adel, JJ.