New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1921-10-09
Check for Interest
Lost i'm Mail, Loan
Is Foreclosed
Justice Tierney Says Insist
ence of Plaintiff Is Elk.
tremely Harsh, but Must
Be Ruled by Legal Merits

justice Tierney decided last week in
the Supreme Court In the Bronx
against house owner even though he
said his findings brought hardship, 1t
was a case where law and not senti-
ment was concerned. In many respects
II was an unusual case and illustrates
the Importance of care in meeting
every condition Of a contract and not
depending too much on the government
mail service.
1t happened that landlord cent a
check for the interest on a mortgage
on his house through the mail. Under
the terms Of the mortgage contract the
interest had to be paid in thirty days
or the mortgagor would foreclose his
loan. The check for the interest did
nor arrive In time, according to the
mortgagor, and legal action was insti-
tuted. The mortgage declared that
he mailed the check for the amount of
the interest and he assumed that that
was sufficient.
Justice Tierney said, in deciding the
case:
Defendants counsel suggests tnat
1T might have been mislaid in the Office
before reaching the plaintiff person.
ally, but the presumption that this did
not occur Is as strong as the presump-
ttlon that the miscarriage did not occur
IN the mail or in the Office of the
agents before it reached the mail II
the letter had been addressed to the
plaintiff at a hotel, for instance, where
it would pass through other hands. with
a chance for confusion, there would
have been more likelihood of it's being
mislaid than where it was handled
under the regular system of q private
Office.
81 think that the defendants have
failed to establish that this check was
received by the mortgages. The bur
den was on them of establishing this.
There was nothing in the mortgage
that made the mailing Of a check
e,] to the receipt of payment
The defendants agents selected this
means of making payment at their own
risk: 1t is further urged by the de-
PENDANTS that they should be relieved
from the results of the default in pay
ment upon the ground that the en-
forcement OF this clause In the mort
gage is uncomfortable on the mart of
the plaintiffs. The plaintiffs did moth
ing to induce the default All that can
be charged against them is that they
old not call it to the attention of the
mortgagors before the thirty days had
p. AH'ii explanation OF this is
that they did not notice that the in
tcrest had become due and had not
been paid until after the thirty days
had expired. They did not require an
excuse, however, as they were under no
icgal obligation to demand payment.
If the failure to demand payment or
call attention to the default would rem
der the application of this clause in a
mortgage. unconscionable, certainly
new condition has been written into the
contract by implication. The plaintiffs
stand upon their legal rights. Under
the circumstances in this case their
lnsistence thereon is harsh in the ex
l'cvc the defendants from the misfor-
tune which an accident has entailed
upon them II it could see the way to
do so consistently With legal principles.
me hardshlp to the defendants is not
ground, however, for depriving the
Pl"ntifs Of their rights where they
have done nothing to forfeit the same