
    Henry Weyand and Daniel E. Cronin, Respondents, v. The Park Terrace Company Appellant, Impleaded with Frederick G. Randall and Pierre Noel, Defendants.
    Second Department,
    December 30, 1909.
    Damages — interest—foreclosure of mortgage — interest after default making principal sum due — authority of referee to compute interest — tender — costs.
    Where in an action to foreclose a mortgage which provides that the principal sum shall become due after default in the payment of interest, it appears that on such default the mortgagee elected to declare the principal due, interest should be cast after the date of such election by way of damages for breach of the contract, and hence at the legal rate of six per cent, although the rate named in the obligation is five and a half per cent.
    
      
      It seems, that if the obligation had been to pay interest at five and a half per cent' until the principal sum was paid, then that rate would have obtained until the contract was-merged in the judgment.
    It was the duty of the referee to compute the amount due,- which included any certain interest. -
    The defendant is not entitled to credit-for a tender which he attempted to make after the action is begun, for the plaintiff was not then required to accept it. The allowance of costs was wholly within the power of ¡the Special Term when it entered final judgment, irrespective of whether or -not the interlocutory judgment included costs. .
    Appeal by the defendant, The Park Terrace Company, from, a final judgment of the Supreme Court in favor of the plaintiffs, entered in the-office of the' clerk of the county of Queens, on the 9th day of June, 1909, confirming the report", of a referee and directing the sale of certain real property under foreclosure proceedings, with notide of an intention to bring up for review an interlocutory judgment and order of reference entered herein on the 1st day-of May, 1909, and an order granting- an additional allowance entered on the 5th day of June, 1909, and also the judgment of reversal entered on-the 13th day of March, 1909. ■
    
      Emil Sohneeloch [IT. Sohieffelin. Sayers with him on the brief], for the appellant. ■
    
      Frederick S. Jaokson, for the respondents..
   Jenks, J.:

This appeal is by a defendant in an action to foreclose a mortgage -upon real estate. ' The referee to compute- allowed interest at the rate of 5£ per.centum per annum until September 26, 1907, and interest thereafter at the rate'* of 6 per centum per annum. The appellant -contends that as the rate named in the Obligation was 5"|-pér cent, the allowance of interest at 6 per cent was erroneous.. It was expressly agreed in the obligation that the .whole of the principal sum should become due after default in the payment of interest, taxes .or assessments. There was default in the payment of interest,, whereupon the "plaintiffs elected on September 25, 1907, that, the principal sum should become'due and payable immediately. This-was their right. (Noyes v. Clark, 7 Paige, 179; Valentine v. Van Wagner, 37 Barb. 60; Noyes v. Anderson, 124 N. Y. 180; Ben nett v. Stevenson, 53 id. 508; Thomas Mort. [2d ed.] § 228.) Thereafter interest was to be east by way of damages for breach of the contract, and lienee at "the legal.rate. If the obligation had been to pay interest until the principal sum was paid, then the rate determined in the obligation must have obtained until the contract was merged in the judgment. (O'Brien v. Young, 95 N. Y. 428; Sanders v. L. S. & M. S. R. Co., 94 id. 641; Hamilton v. Van Rensselaer, 43 id., 244; Ferris v. Hard, 135 id. 354.)

It is contended that such computation was not within the power of the referee. His duty was to compute the amount due, which of course included 'any certain interest. This contention involves the proposition that either he could not compute any interest or that he must compute the wrong interest. The referee was appointed to inform the court, and his report must have been submitted to it for confirmation. (Swarthout v. Curtis, 4 N. Y. 415.) The court thereupon had full control of the question {Austin v. . Ahearne, 61 H. T. 6), and indeed the appellant asked it to consider it de novo. "When the court confirmed the report it became the judgment of the court. The defendant was credited with $605 paid into court. But it also insists that it is entitled to a further credit also of $605 in consequence of a tender. But that tender was attempted to be made after this action had been begun, and hence the plaintiff was not required to accept it. (Rosche v. Kosmowski, 61 App. Div. 23; Malcolm v. Allen, 49 N. Y. 448.)

It is further contended that the plaintiffs are not entitled to costs or allowance; in that no costs were included in the “ interlocutory judgment” of May 1, 1909. The matter of costs and allowances Avas wholly within the poAver of the Special Term when it entered the final judgment of June 5, 1909, and whether it gave costs and an allowance in supposed constraint to the said interlocutory judgment ” or in the exercise of its discretion, we think that its action was right in all respects.

The judgments and the order are affirmed, with costs.

Hirsohberg, P. J., Woodward, Burr and Miller, JJ., concurred.

Judgments and order affirmed, with costs.-  