Blomgren v. Tinton 763 Corp.
| Decision Date | 28 February 1962 |
| Parties | Carl R. BLOMGREN, Plaintiff, v. TINTON 763 CORP., et al., Defendants. |
| Court | New York Supreme Court |
Viscardi & Viscardi, New York City (Sal Viscardi, New York City, of counsel), for plaintiff.
Golieb & Golieb, New York City (Lawrence Elovich, New York City, of counsel), for defendant Tinton 763 Corp.
Marvin A. Cooper, New York City, for defendant Southern-Tinton Corp. and others.
This is an action to foreclose a purchase money second mortgage for $28,100 payable in installments of $205 monthly from April 1, 1958 to February 1, 1970. Plaintiff elected to accelerate the payment of the balance of principal and interest, $25,357.59, on October 31, 1960. The complaint alleges defaults (a) in failing to pay the October installment of $205 as well as those of succeeding nonths (b) in neglecting to comply with orders of the city departments in respect to violations against the mortgaged premises; (c) in removing old fixtures and personal property and substituting therefor new fixtures and property purchased under conditional sales contracts; and (d) in not complying with plaintiff's request for an estoppel certificate.
In addition, plaintiff charges defendants with breach of the mortgage agreement in failing to pay installments due in October, November, December 1960, and January 1, 1961 for refrigerators and ranges which were on the premises at the time the mortgage was made. Also, there is a matter of $338.51 alleged to be due from tenants when the premises were conveyed, and for which plaintiff claims defendants are liable on a vendor's lien.
Whether it is unconscionable for plaintiff to demand acceleration of the due date depends on the circumstances of each case. It would appear that the default in paying the installment of principal and interest was not due to any omission on part of defendants but rather to plaintiff's refusal to accept the check of a 'third person' or mere stranger.
(86 C.J.S. Tender, § 35, p. 576)
Ordinarily a check may not be a good nedium of the tender where objection is raised on the specific ground that payment is made by check instead of money (Myers v. Associates Discount Corporation, Co.Ct., 60 N.Y.S.2d 691). However, plaintiff's refusal to accept Pedant's check was not because it was not good legal tender but because it was a tender by a mere stranger (86 C.J.S. Tender § 35, p. 576; Harris v. Jex, 66 Barb. 232, affd. 55 N.Y. 421) . If the proof showed that Pedant was an agent or representative of Southern-Tinton (New York Life Ins. Co. v. Aitkens, 125 N.Y. 660, 26 N.E. 732), plaintiff would then have no valid reason to reject the check solely on the ground that Pedant was a mere stranger. That Pedant represented Southern-Tinton is shown on the face of the check and by the correspondence between the parties. (See letter of October 18 from Goldman to Viscardi.) Plaintiff knew of the conveyance of the property and the assumption of the mortgage by Southern-Tinton. He admits he heard of it 'informally' before the receipt of the installment check. 'Southern-Tinton Rent Account' was typed plainly on the face of the check. When plaintiff received defendant's personal money order on a bank delivered in payment of the installment, plaintiff had been fully informed of the assumption of the mortgage by Tinton as well as Pedant's agency to act on behalf of Tinton. (New York Life Ins. Co. v. Aitkens, 125 N.Y. 660, 26 N.E. 732.) Although plaintiff has never repudiated the assumption of the mortgage by Southern Tinton nor objected to Pedant, as a representative or agent of the former, he continued to reject the checks on the obviously specious ground that Pedant was a mere stranger.
Plaintiff has the option to accelerate the mortgage debt but he must do so 'in good conscience and in fairness to the...
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