Foster v. Hughes

51 How. Pr. 20

• Court: New York Supreme Court
• Decided: November 15, 1874
• Status: Published

Opinion

Donohue, J.

Courts of equity, or exercising equitable powers, will at all times prevent the improper use, even in a legal way, of their process, and have the power to prevent inequitable consequences of the assertion of even a legal right.

In this case it is clear to me that, while the denial of the plaintiff is made strongly, it is not true, but that, at the bottom, this mortgage is being used to obtain an end different from what is the right of the parties. On the payment of the plaintiff’s demand, with interest and costs, he will obtain all that the law or equity entitles him to, and there can be no excuse for him to refuse an assignment of the mortgage. Hpon making such tender to him, if he refuses to assign, his proceedings in this action are stayed.

Motion granted.