Keller v. Peck

Appeal by defendant Carrie A. Peck from a judgment of foreclosure and sale rendered by the County Court of Otsego county on September 21, 1936, and entered in the office of the clerk of the county of Otsego on September 22, 1936. This action is to foreclose a mortgage on real estate. The bond and mortgage were given by Carrie A. Peek to Amy E. Keller on August 22, 1935 covering real property located in the county of Otsego, providing for the payment of $2,200 as follows: “ The sum of One Hundred ($100) Dollars with interest at 5% payable semiannually.” The mortgagor failed to pay the $100 of principal which became due February 22, 1936 and about six months later this foreclosure action was commenced. It was contended by the defendant that the mortgagee had extended the time of payment of this installment of principal and also that the mortgagee had not exercised her option under the acceleration clause which provided that the whole of the principal sum should become due after default in the payment of any installment of principal for thirty days. The trial court found against the mortgagor on each of these issues. The appellant raised the same questions on this appeal and also urges that the additional allowance of five per cent on the amount due under the mortgage made under section 1513 of the Civil Practice Act was error. Judgment unanimously affirmed, with costs. Present — 'Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ.