Tallman v. Cook

1 Sweeny 550

Opinion

By the Court:

Monell, J.

The ground upon which the motion in this case was founded is set up in the answer, and forms the only issue to be tried in the action.

Without, therefore, determining whether such ground is sufficient to relieve the mortgagor and his assigns from the consequences of the omission to pay the interest within the stipulated time; and also without denying the power of the court upon a motion in a suitable case to restrain' thé prosecuting of a foreclosure, we are yet of the opinion that the learned justice decided correctly at Special Term, in leaving the question of the sufficiency of the ground for equitable relief in this case to be determined at the trial.

The application of the principles of equity are largely, if not wholly, in the discretion of the court; and in the exercise of such discretion, appellate courts, as a general rule, will not interfere ; and it may very well be doubted whether an order made upon a motion at Special Term, refusing equitable relief, is even appealable. It may be otherwise, where relief is granted and such relief, in effect, determines the action.

But as the defendant in this case is merely sent from one branch of the court to another branch, to obtain the same relief, he can have but small cause to complain.

The order should be affirmed, with costs.