
    Rosalynde De Lima Mayer, Respondent, v. Cyrus P. Jones and Others, Defendants, Impleaded with William R. Smith, Appellant.
    Second Department,
    April 23, 1909.
    Foreclosure — agreement to postpone date of sale — when "binding.
    Where, in order to facilitate the entry of ;a judgment in a suit to foreclose a mortgage without trial,, it was stipulated by the defendant that the plaintiff should be permitted to include in the amount to be found due sums paid by him for insurance, costs of a survey and searches, and' in consideration thereof the plaintiff stipulated to suspend the sale ilntil the award of commissioners appointed in. condemnation proceedings, the delay, however, not. to- exceed eighteen months, there is a binding contract between the parties.
    Where the defendant has executed his part of the agreement the plaintiff prior to the expiration of the eighteen months is not entitled to; have the; contract set aside and an immediate sale because aiwards have been made on the condemnation of part of the premises where there is no claim that the agreement was improvidently made or that there was any fraud or mistake.
    The right to a stay is a substantial right and the parties shojnld be held to the . terms of such stipulation until the expiration of the time limited,; or .until the commissioners have made an award for all the land to be taken.
    Appeal by the "defendant,'William R. Smith, from an order of the Supreme; "Court, made at the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 4th day of February,. 1909, directing the immediate sale of land under a foreclosure: judgment. -
    
      William R. Smith, appellant, in person.
    
      Woodson R. Oglesby, for the respondent.
   Burr, J.:

This action was brought in July, 1907, to foreclose a. mortgage on lands in North Castle, Westchester county. The answer of the defendant Smith raised an issue with reference to the right of the plaintiff to effect insurance against loss by fire upon a building upon the property, and as to the amount paid for the same. In other respects the answer was. frivolous. In order to facilitate -the entry of judgment without á trial, on the 8th of January, 1908, a stipulation was entered into by which the plaintiff was permitted to include in the amount to be found due under the mortgage the sum of $167.45, claimed to have been paid for insurance, and to include in the costs certain sums claimed to have been paid for a survey of the premises and for various searches made with regard to unpaid taxes on. the premises which amounted in the aggregate to $350, as .. appears from the bill of costs as taxed and made a part of the record. ' As to the survey, it was not a necessary part of the cost's of the foreclosure. A reasonable amount expended for searches for taxes might have been included by the referee in his expenses of sale, provided a sale was had; but it formed no part of the costs of the foreclosure for which judgment might be entered. In consideration of this stipulation on the part of the answering defendant, the plaintiff agreed in effect to suspend the sale of the premises until the commissioners of appraisal, who had been appointed to determine the value of a portion of the property which was being taken by the city of New York in connection with its water supply, had made their award and the same had been confirmed, not exceeding, however, eighteen months. Thereafter, and on January 28, 1908, the plaintiff entered judgment in accordance with the stipulation. This stipulation, which, lias- been fully executed on the part of the defendant Smith, amounted to a contract between the parties. The eighteen months have not yet expired. - The plaintiff now seeks to set aside this contract. There is no claim that it was improvidently made, or that any fraud or mistake occurred in connection therewith. But the plaintiff asks the court to permit her to disregard this contract and to order an immediate sale of the premises, because, as she claims, the commissioners have made an award as to the greater part of the property, and that portion thereof as to which the commissioners have as yet made no award is of comparatively little value. If this were so it would be an insufficient reason to justify the court in permitting plaintiff to disregard her agreement. But the answering affidavit used upon this motion states that the land for which the commis sioners have as yet made no award consists partly of a piece of swamp land and partly of land lying in the streets or roads-which have been laid down upon a map of the. property covered by the said mortgage. Apparently these are only mapped streets, and the fee of the said land is in the defendant Smith. According to the statement in his affidavit which is not contradicted, the land in the streets is equal in amount to nearly 1,00 city lots. The defendant Smith states that in his opinion such land is .worth several thousand, dollars, and if it is of equal value with that which seems to have been jilaced upon the abutting lots, such land is,worth between $é,0Ó0 and $5,000. Inasmuch as the right to a stay is a right substantial in character, the parties should be held to the terms of their agreement, and a sale should not be permitted until the expiration of eighteen months from January 8, 1908, ¡or until the commissioners’, award as to the residue of the land to be taken, if made within that time, is confirmed. The order appealed from should be reversed, with ten, dollars costs and disbursements, and the motion denied, with ten dollars costs.

Woodward, Jenks, Gaynor and Rich, JJ;, concurred.

Order reversed, with ten. "dollars Costs and disbursements, and motion denied; with ten dollars costs.  