Troy City Bank v. Bowman

19 Abb. Pr. 18, 43 Barb. 639

• Court: New York Supreme Court
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court.

*—Clerke, J.

There is no force whatever in the objections taken by the defendant’s counsel in his two first points. The complaint sets out the indebtedness clearly, and that the mortgage in question was given to secure the payment of a bond, by which the time for the payment of this indebted-' ness was considerably extended. It also shows that Bowman and Finn have failed to comply with the conditions of the bond. These facts surely constitute a sufficient cause of action.

As to the assertion that the bond was void for uncertainty, as the case contains no copy of it, we can only be guided by what the complaint states it to be. The amount is distinctly stated, as well as the periods at which it is payable. Besides, it would not be void for uncertainty, if it could be made certain by extrinsic facts. Id cerium est, quod certum reddi potest.

The defendant Bowman certainly has no right to complain of the surrender of some of the collateral notes to him; as to the remaining three notes retained by the plaintiffs, they have a right to retain them until their debt shall be paid. This was the agreement, and they are under no obligation to surrender them.

The stipulation in the receipt contains no promise on the part of the plaintiffs not to bring an action to foreclose this mortgage, when the time of payment mentioned on the bond has elapsed. The clause referred to means, that until the expiration of that time, no suit shall be brought.

The judgment should be affirmed, with costs..

Present, Clerke, Ingraham, and Sutherland, JJ.