Day v. Strong

Frost v. Yonkers Savings Bank (70 N. Y., 553) is an authority for saying that when a tender is made by a subsequent incumbrancer it will not operate as a discharge of tbe prior lien unless such is tbe clear intent of tbe party making such a tender. Eael, J., said, in that case, viz.: “ If one desires to make a tender which shall destroy tbe ben of an incumbrance, and. have, so far as it concerns it, the effect of payment, be must make an absolute tender of payment, which if received will discharge the debt and the inevmbranee.” In the written notice and demand served by Mr. Strong, the subsequent incumbrancer, upon the plaintiff on the 2d of September, 1871, is a clear indication of an intent to offer what was due upon plaintiff’s mortgage for the purpose of' obtaining an assignment of it ánd not to pay it. The following words were inserted, viz.: “ I, therefore, being a junior incumbrancer, herewith tender you the amount due upon the said mortgage, principal and interest, and as such junior incumbrancer demcmd an assignment to me of said mortgage and that I be subrogated to all your rights thereon.” It is clear from the oral evidence as to this and the other tender made upon the twenty-sixth of August that the tender was not for the purpose of payment and cancellation of the plaintiff’s lien, but for the purpose of acquiring the ownership thereof. Indeed, each tender was accompanied with a request to assign the mortgage as a valid, unpaid, undischarged security, therefore neither of the tenders operated as payment and discharge of the mortgage or the lien thereof. The mortgage, after such tenders and the refusals to accept them, remained valid and a lien, upon the lands of the mortgagor. (Frost v. Dank, supra.) It was an .assignment of the prior mortgage which Strong sought, and according to well settled rules he was entitled to have an .assignment upon payment of an ■ amount *508equivalent to the debt and interest, and any costs made incident to the debt and lien. (Ellsworth v. Lockwood, 42 N.Y., 97; Twombly v. Cassidy, 82 id., 155; Cole v. Malcolm, 66 id., 366; Belden v. Slade, 26 Hun, 635.) If the defendant Strong had brought an action to compel the assignment by the plaintiff of his mortgage it would have been his duty to pay, or offer to pay, the debt and interest; and if the action had not been brought until foreclosure proceedings had been instituted by the plaintiff, then and in that case the right to an assignment could not have been asserted without payment of plaintiff’s debt, interest and costs of the foreclosure, (1 Hill, on Mort., 397; Belden v. Slade, supra) As the defendant Strong did not bring an action to compel the assignment of plaintiff’s mortgage, but waited for the plaintiff to commence his action of foreclosure and then set up the facts in respect to the tenders and request to assign, he ought to have brought the money tendered into court, and kept the same identical money tendered ready for the plaintiff in order to avoid interest. (Tuthill v. Morris, 81 N. Y. 100; Johnson v. Zink, 51 id., 335; Harris v. Jex, 55 id., 425.) No such money was brought into court. The defendant Strong, therefore, was not entitled to have the plaintiff adjudged to make an assignment of the mortgage without payment of the whole amount of debt, interest and costs of the foreclosure. (Belden v. Slade, supra) The judgment must be reversed and a new trial ordered before another referee, with costs, of one appeal to abide the final award of costs.

Judgment reversed and new trial ordered before another referee, with costs of one appeal to abide the final award of costs in the action.