
    Battim Associates, Inc., Plaintiff, v. L & L Estates, Inc., et al., Defendants.
    Supreme Court, Special Term, Kings County,
    October 9, 1945.
    
      Charles E. Fier for L & L Estates, Inc., defendant.
    
      Abraham Beutscher for plaintiff.
   F. E. Johnson, J.

The plaintiff is foreclosing a mortgage not protected by the moratorium. An installment due August 1st was not paid in the manner previously followed, namely by mailing a check the day before. The accountant for the owner was to blame; as soon as he learned of it he mailed it, on August 31st, together with the succeeding installment, due on September 1st. On September 10th, papers in this action to foreclose were filed with the county clerk. There is nothing in the papers to show that the late check, or the one due September 1st, was returned; the retention of these checks ought to be as significant and effective as the retention of any paper in a lawsuit that is served too late but is not returned. While the four-three decision in Graf v. Hope Building Corp. (254 N. Y. 1) is still the law, it seems to be the effort of the courts to escape its effect wherever the facts will permit (Domus Realty Corp. v. 3440 Realty Co., Inc., 179 Misc. 749; Ferlazzo v. Riley, 278 N. Y. 289). The motion to dismiss on the terms proposed is granted.  