
    Lorenz Leopold, Appellant, v. Esther Hallheimer and Max Hallheimer, Respondents, Impleaded with Charles J. Patterson.
    
      Mortgage — an agreement extending the time of payment thereof, does not abrogate a cotenant in the mortgage to pay taxes—foreclosure for a default in the performance of such covenants.0
    
    In an action brought to foreclose a mortgage, which provided, among other things, that if the mortgagor allowed any assessments,, taxes or water rates to. remain unpaid for three months after the same were confirmed, that the whole principal sum, secured by the mortgage, should, at the option of the mortgagee, become immediately due and payable, it appeared that after the giving of the-mortgage and in May, 1892, the plaintiff agreed with the mortgagor in writing and under seal to extend the time of payment of the mortgage for five years,, and until May 1, 1897, the mortgagor covenanting to pay interest semi-annually. The mortgagor did not pay certain taxes and water rates, as he covenanted in the bond and mortgage to do, and for this failure the present action-was brought to foreclose the mortgage.
    The trial court considered that the agreement extending the time of payment controlled the covenants of the mortgage which related to the payment of taxes, assessments and water rates, and dismissed the complaint.
    
      Held, that this view was erroneous;
    That the conditions of the mortgage were not rescinded by the agreement extending the time of payment;
    That in the absence of an express agreement abrogating these conditions of the mortgage, or a clear implication of that tenor to be derived from the terms of the agreement, the court would not hold that such important conditions in the mortgage had been abrogated.
    
      Appeal by the plaintiff, Lorenz Leopold, from a judgment of the City Court of Brooklyn in favor of the defendants Esther Hallheimer and Max Hallheimer, entered in the office of the clerk of said court on the 5th day of August, 1895, upon the decision of the court rendered after a trial at a Special Term of the City Court of Brooklyn dismissing the complaint.
    
      Fernando /Solmger, for the appellant.
    
      Max Hallheimer, for the respondents.
   Per Curiam:

This action was brought to foreclose a mortgage upon real estate,, dated April 26, 1888, made by Esther Hallheimer to Andrew Wils, to secure the payment of $1,000, one year after date, with interest,, payable half yearly, at the rate of five per cent per annum:

On May 4, 1892, the mortgage and the accompanying bond were assigned to the plaintiff, and on May 5, 1892, the plaintiff and said Esther Hallheimer entered into an agreement in writing and under seal, which, among other things, provided that the period for the payment of the said mortgage * * * be extended five years, and that the said mortgage shall not be due and payable until the first day of May, one thousand eight hundred and ninety-seven; ” and the said Esther Hallheimer further agreed to pay interest upon said mortgage at the rate of six per cent per annum, payable half yearly.

The mortgage contained covenants upon the part of the mortgagor to pay taxes, assessments and water rates, and to keep the property insured against loss by fire, and to assign the policy to the mortgagee as collateral security for the loan, and in default thereof the mortgagee was authorized to make such payments, and when made by him the amounts paid were to become a part of the mortgage debt, and were to be due and payable immediately.

The mortgage further provided that if the mortgagor should allow any assessments, annual taxes or water rates on such premises, to remain unpaid and in arrears for the space of three months after the same were confirmed, or refused to pay on demand, to the mortgagee, any sum paid by him for taxes, etc., then the whole principal sum of the loan should, at the option of the mortgagee and his. assigns, be and become due and payable immediately.

The complaint in this action alleged that the mortgagor had failed to pay the annual water rates on said premises for the years from 1886 to 1893, inclusive, and certain taxes thereon for the years 1893 and 1894, and that more than three months had elapsed since the same had been confirmed, and that the plaintiff elected that the whole principal sum of the mortgage should become due and payable.

These facts so alleged Avere not denied, but the trial court found that the principal of said bond and mortgage did not become due until May 1, 1897, and dismissed the complaint.

We are of the opinion that this conclusion cannot be sustained.

The agreement made between the parties on May 5,1892, did not, in terms, rescind the covenants in the mortgage relating to the payment of taxes and insurance, and there is nothing in its provisions which necessarily indicates that such >vas the intent of the parties. By the original terms of the mortgage, the principal sum was payable on April 26, 1889. But that provision was subject to the covenants in reference to the prompt payment of interest, taxes and insurance, and Avas liable to be shortened by the mortgagor’s default in their performance. It is in entire harmony with the original contract and Avith the usual stipulations of this class of securities, to construe the agreement as extending the time of payment of the principal sum till May 1, 1897, subject to the performance of the ■covenants contained in the mortgage, and we are umvilling to hold that such important conditions in the mortgage have been abrogated in the absence of an express agreement or a clear implication to that •effect from the terms of the written contract.

The judgment must be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the •event.  