New York Water Service Corp. v. Newstrand Realty Corp.

280 A.D. 322, 113 N.Y.S.2d 769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1952
• Status: Published

Opinions

Per Curiam.

The learned Special Term correctly decided in its original decision of April 16, 1951, that defendant’s (mortgagor’s) right of prepayment survived and plaintiff’s (mortgagee’s) objection to the proposed prepayment of the mortgage in the summer of 1949 was not based on the absence of a proper notice. That latter objection was only belatedly urged after plaintiff’s motion for summary judgment had been denied.

In any event we hold that under the terms of the reservation clause 10 in the modification agreement, the mortgagor’s right of prepayment clearly survived and we also hold that the notice given was sufficient.

Plaintiff’s motion to reargue should have been denied as it concededly was based, not on the facts originally submitted, but on additional facts admittedly known to plaintiff’s attorneys but, for plaintiff’s then contemplated benefit, deliberately omitted from plaintiff’s original m.oving papers.

The order entered herein on May 22,1951, should be reversed, with $10 costs and disbursements to defendant-appellant and plaintiff’s motion should be denied. The order entered herein on June 21,1951, should be modified on the appeal of defendant-appellant by granting summary judgment in favor of defendant dismissing the complaint, with costs to defendant and as so modified, the said order should be affirmed, with $10 costs and disbursements to defendant-appellant.