Martin v. Clover

New York Supreme Court

Martin v. Clover

17 N.Y.S. 638, 45 N.Y. St. Rep. 44, 63 Hun 628, 1892 N.Y. Misc. LEXIS 419

CourtNew York Supreme Court

DecidedFebruary 8, 1892

StatusPublished

Cited by2 cases

This text of 17 N.Y.S. 638 (Martin v. Clover) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martin v. Clover, 17 N.Y.S. 638, 45 N.Y. St. Rep. 44, 63 Hun 628, 1892 N.Y. Misc. LEXIS 419 (N.Y. Super. Ct. 1892).

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Opinion

Pratt, J.

This case is too plain to require much discussion. • The plaintiff was justified in returning the check first sent,'not only because the check contained a statement that it was given in payment for interest in full up to a date 20 days more than was true in fact, but also because it was a check, and not legal tender. The interest not being paid, the holder of the mortgage, before the receipt of another check, had elected to regard the whole sum secured by the mortgage as due, and therefore he had a right to return the second check as being tendered too late. This case, at first view, seems hard, but it is evident, I think, that the defendant did not intend in good faith to pay the interest, as he seems to have either dated the second check back two days, or negligently failed to post it until two days after the default in payment of the interest. The defendant also made no effort to tender the interest after the second check was returned, or to be relieved from his default by application to the court. The case was therefore properly decided below upon the ground of the interest being paid or tendered in time to prevent an election. We also think that the court at special term construed the tax clause correctly. It may be further said that the facts found clearly warrant the judgment, and, inasmuch as it does, not appear that all the evidence is reported, we are precluded from reviewing the findings of fact. Aldridge v. Aldridge, 120 N. Y. 616, 24 N. E. Rep. 1022. Judgment affirmed, with costs. All concur.

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Pratt, J.

This case is too plain to require much discussion. • The plaintiff was justified in returning the check first sent,'not only because the check contained a statement that it was given in payment for interest in full up to a date 20 days more than was true in fact, but also because it was a check, and not legal tender. The interest not being paid, the holder of the mortgage, before the receipt of another check, had elected to regard the whole sum secured by the mortgage as due, and therefore he had a right to return the second check as being tendered too late. This case, at first view, seems hard, but it is evident, I think, that the defendant did not intend in good faith to pay the interest, as he seems to have either dated the second check back two days, or negligently failed to post it until two days after the default in payment of the interest. The defendant also made no effort to tender the interest after the second check was returned, or to be relieved from his default by application to the court. The case was therefore properly decided below upon the ground of the interest being paid or tendered in time to prevent an election. We also think that the court at special term construed the tax clause correctly. It may be further said that the facts found clearly warrant the judgment, and, inasmuch as it does, not appear that all the evidence is reported, we are precluded from reviewing the findings of fact. Aldridge v. Aldridge, 120 N. Y. 616, 24 N. E. Rep. 1022. Judgment affirmed, with costs. All concur.

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Bluebook (online)

17 N.Y.S. 638, 45 N.Y. St. Rep. 44, 63 Hun 628, 1892 N.Y. Misc. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-clover-nysupct-1892.

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