
    Daniel J. Noyes, Respondent, against Theresa A. Anderson et al., Appellants.
    (Decided May 18th, 1888.)
    In an action to foreclose a mortgage for $12,500, defendant set up a subsequent contract, by which plaintiff agreed not to institute proceedings to foreclose the mortgage during defendant’s lifetime, provided no interest on prior mortgages or taxes or assessments remained unpaid for more than thirty days. An assessment of $23 had remained unpaid for about fourteen months. Held, it appearing that defendant was a woman of seventy years of age, that plaintiff had, or she had reason to'
    
      believe lie had, money of hers in his hands with which he might have paid the assessment, and that the assessment was promptly paid by defendant when she had notice of it, that the court would not allow plaintiff to take advantage of such default, and the agreement was a good defense to the action.
    Appeal from a judgment of this court directing foreclosure and sale.
    The action was brought to foreclose a mortgage made by defendant and John J. Anderson, January 1st, 1884, to plaintiff, to secure $12,500, payable January 1st, 1885, with interest from the date. The defendant set up in defense an agreement executed between her and the plaintiff October 2d, 1885, by which plaintiff agreed not to institute any proceeding to foreclose said mortgage during the life of defendant, so long as certain prior mortgages upon the premises remained unforeclosed, and no interest thereon remained unpaid for thirty days, and no taxes or assessments remained unpaid for more than thirty days. It was proved that an assessment of $23.08, confirmed and entered on March 4th, 1886, was not paid until April 28th, 1887.
    
      Stephen 0. Baldwin, for appellants.
    
      JE. L. Hamilton, for respondent.
   J. F. Daly, J. —

[After stating the facts as above.] — The defendant, Mrs. Anderson, is upwards of seventy years of age, and intrusted the care of her property to her son, by whose oversight the trifling assessment of $23.08 was suf-' fered to remain unpaid for more than the period of thirty days fixed by the agreement for the payment of interest, taxes, and assessments. As the assessment was promptly paid by defendant when she had notice of it, and the plaintiff has not been prejudiced by the delay, it would seem inequitable to permit the enforcement of the bond and mortgage for such a default. The rule which might be applied to her covenant for the payment of interest and taxes ought not to be invoked with respect to assessments. In the case of interest, the day of payment is fixed by the terms of the instruments, the bond and mortgage, and in the case of annual taxes, the time of payment is a matter of public notoriety and of custom; but it is not so with assessments, which are not imposed at any stated times, and which may and are often overlooked for want of notice. The reasonable construction of the agreement in this case (where consequences resembling in some respects forfeiture of valuable rights will result from the application of a different rule) would be to allow defendant a reasonable time for payment after notice of the confirmation of the assessments.

It must be borne in mind that the right to foreclose in this case does not grow out of the terms of the bond and mortgage, but of a separate independent agreement between the mortgagor and mortgagee, and it is with respect to the defendant’s default under that agreement that I think the construction above suggested should be applied. The amount of the assessment is trifling, the consequences to the defendant are most serious, and no wilful nor inexcusable neglect is shown. It is also proved that the defendant had reason to believe that plaintiff had moneys in Ms hands belonging to her which he might have applied to discharge the assessment. The facts of this case are peculiar, and it is upon those facts solely that I base my conclusion. A forfeiture for non-payment of assessments would not be permitted (Giles v. Austin, 62 N. Y. 486); and the reasons given in that case apply with great force to the present. I am therefore in favor of reversmg tliis judgment and ordering a new trial.

Van Hoesen, J. —

Mr. Noyes has never paid to Mrs. Anderson the full amount that he was to pay. Over $180 remain to be paid. Hankins, being the agent of Mrs. Anderson, could not make a valid agreement that the $180 should be set off against a debt that he owed to Mr. Noyes, instead of being paid to Mrs. Anderson. The result is that, at the time this action was begun Mr. Noyes owed Mrs. Anderson $180, and having that money in his hands, he could have protected himself from loss through a sale of the premises for non-payment of the assessment, by stepping forward and paying the assessment out of the moneys that he held belonging to Mrs. Anderson. The object of the agreement is obvious; Mrs. Anderson was to be indulged so long as Mr. Noyes’s security was not impaired. It would be inequitable to allow Mr. Noyes to withhold from Mrs. Anderson money with which the assessment could have been paid; an assessment of which he knew, and she did not know; and then claim a foreclosure because the assessment was not paid. He would have run no risk in paying the assessment for the purpose of protecting his security. He liad her money wherewith to pay. Consequently he cannot complain of her failure to pay.

Judgment reversed and new trial ordered, with costs to abide event.  