
    William H. Martin, Trustee, Resp’t, v. Bertrand Clover, Impl’d, Appl’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Mortgage—Payment ob interest—Tender.
    On the day prior to the last one on which interest could he paid under the option clause in a mortgage, the mortgagor sent a check which stated that it was in payment of interest to date. Held, that the mortgagee was justified in returning it, not only because of such statement, hut also because it was a check and not legal tender, and also in returning another check sent after he had made his election to regard the whole sum as due.
    
      3. Same-Taxes.
    The mortgage provided that in default of payment of taxes for ninety days, the mortgagee might pay such taxes, and tire amount thereof should forthwith be due and payable and be deemed secured by the mortgage and collectible in the same manner, at the same time and upon the same conditions as the interest on the principal sum, “and in default of such payment * * the whole of the principal sum and interest accrued” should, at the option of the mortgagee, “ immediately become due and payable.” Held, that on default in payment of taxes for ninety days the mortgagee had an absolute right to declare the principal sum due.
    Appeal from judgment in favor of plaintiff.
    Action to foreclose a mortgage given by defendant Clover to plaintiff, as executor of the will of Francis W. Hutchins. The mortgage contained the usual interest clause, giving twenty days in which to pay, and giving the mortgagee the option at the expiration of that time to declare the entire sum secured by the mortgage due and payable. It also contained the following clause:
    “ And it is further agreed by and between the parties to these presents that the said party of the first part, his heirs, executors, administrators or assigns, will pay and discharge all taxes, assessments or other charges that now are a lien or hereafter shall be levied, assessed or imposed and become a lien upon the premises above described, or any part thereof, and in default .thereof for the space of ninety days after the same shall have become due and payable by law, the said party of the second part, his successors or assigns, may pay such taxes, assessments or ■other charges and expenses, and the amount so paid and interest thereon from the time of such payment shall forthwith be due and payable from the said party of the first part, his heirs, executors, administrators or assigns, to the said party of the second part, his successors or assigns, and shall be deemed to be secured by these presents, and shall he collectible in the same manner, at ■the same time, and upon the same conditions as the interest upon the principal sum hereinbefore mentioned. And in default of ■such payment by the said party of the first part, his heirs, administrators or assigns, the whole of the principal sum and interest accrued by this mortgage shall, at .the option of the said party of the second part, his successors or assigns, immediately become due and payable."
    The plaintiff proved that taxes were duly levied, and became a lien on the mortgaged premises in 1889, that they remained unpaid for more than a year, were sent to the arrears department in December, 1890, and were finally paid by the defendant on March 3, 1891, some three months after defendant’s answer was served.
    The facts as to payment of interest were these: The defendant waited till November 19, and then sent through the mail a check dated November 19 for the interest due November 1. The check specified on its face that it was for interest on mortgage to date. The check was returned for this reason. Another check dated November 20, inclosed in a letter post-marked November 22, 1890, 11 A. M., was received on November 22d, and returned, the plaintiff having before its receipt given the defendant notice of his election to call in the mortgage. No further tender or attempt to pay has ever been made.
    In deciding the case, the court remarked: “I do not see that, the authorities cited are in point at all. This bond contains this-special covenant, thát in case of default of ninety days in payment, of taxes, then the principal sum becomes due. This is to enforce-payment of the principal sum the same as if it had been written in the bond. It seems to the court that the plaintiff had the absolute right to declare the principal of this bond due. I do not see that there is any question of it. Take your judgment of foreclosure. I think the defendant should have thirty days stay after entry of judgment before you advertise or put him to further-expense.”
    
      jBertrand Glover, app’lt in person ; Josiah T. Marean, for resp’t.
   Pratt, J.

This case is too plain to require much discussion. The plaintiff was justified in returning the check first sent, not. only because the check contained a statement that it was given in. payment for interest in full up to a date twenty days more than was true in fact, but also because it was a check, and not legal, tender.

The interest not being paid, the holder of the mortgage before-the receipt of another check had elected to regard the whole sum secured by the mortgage was due and, therefore, he had a right to return the second check as being tendered too late.

This case at first view seems hard, but it is evident, I think, that the defendant did not intend in good faith to pay the interest, as he seems to have either dated the second check back two days or negligently failed to post it until two days 'after the default in payment of the interest.

The defendant also made no effort to tender the interest after the second check was returned or to be relieved from his default, by application to the court.

The case was, therefore, properly decided below upon the ground of the interest not being paid, or tendered in time to prevent an election.

We also think that the court at special term construed the tax clause correctly.

It may be further said that the facts found clearly warrant the-judgment and inasmuch as it does not appear that all the evidence is reported we are precluded from reviewing the findings of fact. Adridge v. Aldridge, 120 N. Y., 616; 31 St. Rep., 948.

Judgment affirmed, with costs.

Barnard, P. J., and Dykhan, J., concur.  