Garfinkle v. Hickey

• Decision Date: 28 October 1924
• Docket Number: No. 59.,59.
• Citation: 126 A. 428
• Parties: GARFINKLE v. HICKEY.
• Court: New Jersey Supreme Court

126 A. 428

GARFINKLE

v. HICKEY.

No. 59.

Court of Errors and Appeals of New Jersey.

Oct. 28, 1924.

Appeal from Court of Chancery.

Suit by Isaac M. Garfinkle against John C. Hickey to foreclose a mortgage. Prom decree of foreclosure, defendant appeals. Affirmed.

John C. Reed, of Atlantic City, for appellant.

Harcourt & Steelman, of Atlantic City, for respondent.

PER CURIAM. This is an appeal from a decree of foreclosure of a mortgage, the principal of which was "called," in accordance with its terms, because of a default for 30 days in the payment of an instalment of interest. The defense was that the defendant, who had purchased the property subject to the mortgage, did not know the date when the interest would fall due, and was misled in this respect by the action of the complainant (an assignee of the mortgage), who asked and received from defendant's agent, Mulack, the name and address to which bills for interest might be sent, and who then mailed a bill for the interest in question to a different name although at the proper address.

This is not a sufficient defense. The mortgage was recorded, and the defendant, besides being charged thereby with constructive notice of the interest maturity dates thereunder, always had it in his power to acquire actual knowledge of such dates by examining the record. Being, so far as the point here involved is concerned, in the position of a debtor, it was his duty to inform himself of these dates in order that he might pay the interest when it fell due, instead of relying upon what he thought was the probability of the creditor sending him a demand for payment.

This was the view taken by the learned Vice Chancellor, and the decree is therefore affirmed.

For affirmance: The CHIEF JUSTICE, Justices TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, and LLOYD, and Judges WHITE, GARDNER, VAN BUSKIRK, CLARK, McGLENNON, and KAYS.

For reversal: None.