County Court, Kings County, December, 1919. [Vol. 109.

the terms of said mortgage would be due and payable on the 1st day of April, 1919, and demanded payment thereof," in addition to all arrears remaining unpaid according to the terms and conditions of the bond and mortgage. That on April 7, 1919, defendant mailed to plaintiff a check for $250, in payment of said installment which by the terms of said mortgage was due April first, which check on the ninth day of April plaintiff returned to defendant, demanding that the entire amount of the mortgage be paid, declaring that defendant had violated the conditions of said mortgage. That on the 19th day of April, 1919, defendant again mailed to plaintiff a check for $250, with a check for $63.80, interest due January 1, 1919, which check for $250 plaintiff again returned to the defendant, and commenced this action to foreclose said mortgage. The fact that the plaintiff refused to accept the overdue installment and elected to declare the whole amount due and to institute her action of foreclosure may, as counsel contends, work a great hardship to defendant. All that may be true, but equity can make no distinction between the rights of plaintiff and defendant; both are equal before the law. The question before the court is, did the defendant neglect to live up to the terms of the contract between himself and plaintiff, expressed in the bond and mortgage? If he did, plaintiff may exercise her right to prosecute her action to foreclose. And in a case free from any fraud, trick or oppressive conduct on the part of plaintiff, plaintiff having a bond and mortgage made by defendant, in which payment of installments of the principal sum is fairly set out and the dates of payment fixed, and defendant neglects to pay at the time stated in said contract of mortgage, and if by such failure he suffers the whole debt to become due and payable according to the terms of the mortgage, no court can interfere to relieve him from

Misc.] County Court, Kings County, December, 1919.

the payment hereof according to the conditions of his own agreement. And although he did forward a check for $250, seven days after the same fell due, and the plaintiff returned it, demanding payment of the whole mortgage, defendant cannot complain. If by reason of his own negligence in failing to perform his part of the contract he becomes a sufferer, no court can equitably interfere between him and the fulfilment of his legal agreements. Courts have no right to say it is unconscionable or oppressive in plaintiff to claim the payment of the money which belongs to her on the day when defendant agreed to pay it. Malcolm v. Allen, 49 N. Y. 451; French v. Row, 77 Hun, 380; Ferris v. Ferris, 28 Barb. 29.

The question arises whether this court exercising its equitable jurisdiction can excuse the defendant for neglecting to comply with the conditions contained in the bond and mortgage or alter the terms of said instrument without the consent of the plaintiff. No doubt this court has jurisdiction to correct errors in contracts over which it has jurisdiction and make them conformable to the agreement between the parties. But nothing of the kind is before it in this case. The evidence shows that on the fourth day of March the plaintiff notified defendant that the first installment would fall due on the first day of April, 1919, therefore defendant had fair notice of the conditions in the mortgage, and that upon his neglecting to comply with the conditions in the mortgage, the principal became due and payable by the terms of his contract. And in the absence of fraud this like any other contract will be enforced in a court of equity. Valentine v. Van Wagner, 37 Barb. 61; Ferris v. Ferris, 28 id. 29; Noyes v. Clark, 7 Paige, 179; Steel v. Bradfield, 4 Taunt. 227; Martin v. Clover, 45 N. Y. St. Repr. 44; 17 N. Y. Supp. 638.

County Court, Kings County, December, 1919. [Vol. 109, Misc.]

The learned counsel for defendant contends that a judgment in this case against defendant would operate as a forfeiture. The court respectfully differs from the attorney for defendant. A forfeiture is a failure to perform the condition on which the obligee was to be excused from the penalty in the bond. The question of forfeiture has no place in this action. Plaintiff's claim is for a debt owing by defendant secured by his written contract, evidenced by a bond and mortgage. There is nothing more demanded from defendant, than that he comply with its conditions. He is asked to pay nothing but his debt, he forfeits nothing. Damages are not asked for, there is merely an altering of the day of payment." It is the opinion of the court that plaintiff is entitled to judgment.

66

Judgment for plaintiff.

MEMORANDA

DECISIONS AFFIRMED BY THE APPELLATE DIVISION ON THE OPINION OF THE LOWER COURT AND NOt PreVIOUSLY REPORTED

AND

OPINIONS NOT OTHERWise ReportED

L. A. STORCH & Co., Plaintiff, v. MARGINAL REALTY CORP. et al., Defendants.

Lien

(Supreme Court, New York Special Term, January, 1919.)

- labor and materials furnished after abandonment of contract -priority. Notice of lien must state value of the labor performed or the materials furnished when description of property insufficient Lien Law, § 9 (4, 7).

ACTION to enforce a lien.

Benjamin Berger, for plaintiff.

Eidlitz & Hulse, for defendant D. H. McLaury Tile Co., Inc.

Wilson, Barker & Wager, for Murtha & Schmohl Company.

Solomon C. Whitbeck, for The Peele Company.

Ascher & Goldstein, for Northern Waterproofing Company.

Thomas & Houghton, for John P. Kane Company. Wilbur F. Earp, for S. H. Pomeroy Co., Inc.

A. H. Burroughs, for Marginal Realty Company.

Louis H. Porter, for Yale & Towne Manufacturing Company.

Robert D. Geswein, for Wells Brothers Company.

M. Carl Levine, for Friedman Marble & Slate Works, Inc.

Lewis & Schaap, for Empire City Iron Works, Inc.

LEHMAN, J. The plaintiff herein is a subcontractor who performed work and provided material for the defendant Wells Brothers Company in the improvement of certain premises in the city of New York known by the street numbers 513, 515, 517 and 519 West Twenty-fifth street. The Marginal Realty Corporation was, and still is, the owner in fee of these premises, and on or about the 12th day of January, 1916, entered into an agreement with the defendant Wells Brothers Company whereby it agreed to pay to the Wells Brothers Company the cost and an agreed percentage upon said cost, not, however, to exceed the sum of $190,000, for the erection of an eight-story building on this property. Wells Brothers Company carried out the work until it was almost completed, and then, owing to a dispute as to payments due, it abandoned the work. Under the terms of the contract the Marginal Realty Company had the right if the contract was abandoned to complete the work for itself and to charge the expense of the labor, tools and materials to the contractor. Acting under this provision the Marginal Realty Company proceeded to complete the building. Thereafter the plaintiff and the defendants filed mechanics' liens for the amount due and unpaid to them by Wells Brothers Company. It is undisputed that the cost of the work performed by the Wells Brothers Company prior to its abandonment of the contract exceeded the sum of $190,000. It is also undisputed that it performed extra work upon the order of the Marginal Realty Company in the sum of $23,963.94, so that the total amount payable by the owner under the contract and for the extra work is the sum of $213,963.94. The owner has