Stephen Burkard, Appellant, v. Stephan Building and Construction Company, Respondent, Impleaded with Fred Dawson and Others, Defendants

Stephen Burkard, Appellant, v. Stephan Building and Construction Company, Respondent, Impleaded with Fred Dawson and Others, Defendants. Second Department, December 19, 1913. Mortgage — foreclosure — validity of stipulation to discontinue upon payment of interest and costs—part performance of stipulation. A plaintiff, in a suit for the foreclosure of a mortgage, who stipulates before answer to discontinue if the defendant pay all accrued interest and taxable costs before a certain date, but reserves the right to proceed without notice upon failure of the defendant to pay said interest and costs, may proceed with the suit where the defendant has merely paid the interest. It seems, that such a stipulation is without consideration and invalid; but, whether valid or invalid, its force and effect can only be determined by answer and a trial of the issues. Appeal by the plaintiff, Stephen Burkard, fiom an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of July, 1913, denying a motion for the confirmation of the report of a referee. The action was brought to foreclose a mortgage which provided that the whole principal sum should become due and payable at the option of the obligee after default in the payment of interest for thirty days, or after default in the payment of taxes for ninety days after the same became due and payable. It was alleged that the mortgagor had made default by failing to pay both the interest and the taxes, and plaintiff exercised the option by demanding payment of the whole amount of the principal. Subsequent to bringing this action, and on the 2d day of May, 1913, a stipulation was entered into between the attorneys for the plaintiff, appellant, and defendant, respondent, wherein it was agreed that if the defendant, Stephan Building and Construction Company, pay up all accrued interest upon the mortgage being foreclosed by this action and all taxable costs, before May 31, 1913, the action would be discontinued and the mortgage allowed to remain upon the property for its unexpired term. The stipulation further states that if the defendant, Stephan Building and Construction Company, shall fail to pay such interest and taxable costs on or before May 31, 1913, then and in that event the plaintiff shall be at liberty, without notice, to proceed with this action and the foreclosure of the mortgage. The defendant, Stephan Building and Construction Company, failed to comply with this stipulation, but did pay to plaintiff’s son (the plaintiff being abroad at the time) the sum of sixty dollars. Subsequently an order of reference to compute the amount due to the plaintiff was made, but the motion to confirm the referee’s report was denied and an order was made directing that the defendant, Stephan Building and Construction Company, pay the taxable costs in the action to plaintiff’s attorney within thirty days. John Klein, for the appellant. Louis J. Halbert, for the respondent. [MAJORITY — Rich, J.: .] Rich, J.: . The respondent only undertook to pay the interest and costs by May thirty-first, and the plaintiff to postpone further proceedings until such time, and to discontinue the action in the event that the payment was made. The stipulation was without consideration and I believe it to be invalid (Feldman v. Rockford Co., 70 Misc. Rep. 66; 126 N. Y. Supp. 646; Trenor v. Le Count, 84 Hun, 426), but whether valid or invalid its force and effect could only be determined by answer and trial of the issues. (Trenor v. Le Count, supra; Cole v. Hinck, 120 App. Div. 355; 105 N. Y. Supp. 407.) The defendant did not answer, and no such issue was tendered. The respondent contends, however, that the payment of interest to July first furnishes an adequate consideration. If we concede this, the payment of sixty dollars was but a partial performance of the terms of the stipulation or agreement, and the respondent was not entitled to the benefits of the agreement until it had fully performed. (Odell v. Hoyt, 73 N. Y. 343.) The respondent had failed to comply with the terms of the stipulation, it had not answered, and the plaintiff was entitled to proceed with the action. If the agreement was valid, the learned court had no power to relieve the respondent from strict compliance with its terms by forcing upon the plaintiff an agreement he never made. It follows that the order must he reversed, with ten dollars costs and disbursements, and plaintiff’s motion for confirmation of the referee’s report and for judgment of foreclosure and sale granted, with costs. Burr, Thomas, Carr and Putnam, JJ., concurred. Order reversed, with ten dollars costs and- disbursements, and plaintiff’s motion for confirmation of the referee’s report and for judgment of foreclosure and sale granted, with costs.