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Supreme Court of New York, Appellate Division, First Department
December 30, 1915
No Number in Original
[*559] [**696] The facts upon which this appeal turns have been so fully stated by Mr. Justice Laughlin that it is unnecessary to repeat them at length. The appellants [***3] are sued as guarantors for the payment of a bond secured by a mortgage, and the question involved has been accurately stated by him to be "whether the election of the holders of the mortgage at the time of the foreclosure to declare the whole amount due was irrevocable and inured to the benefit of the appellants and could not be waived without their consent."
The situation of the parties when Stecher and Paley, the then owners of the mortgage, elected to declare the whole amount due, for non-payment of an installment, was that these appellants were guarantors that the sum secured by the mortgage would be paid in strict conformity to the terms of that instrument and the accompanying bond. This included the obligation to pay the whole amount when it should become due, if those primarily obligated should fail to do so. Hence when the whole amount became due by the election of the holders to so consider it, the appellants became instantly liable, as guarantors, to pay the whole amount, but coupled with this obligation was the right to be subrogated to any security which the creditor might hold. It was also their right to insist that the date of the payment should not be postponed [***4] without their consent, under penalty of the cancellation of their liability. These rules are fundamental and elementary.
Nothing is better settled in this State than that ] the holder of a bond and mortgage who has elected to declare the whole debt presently due for a default in paying interest or an installment of principal, cannot of his own accord, and to the detriment of any person obligated to pay the amount, revoke and recall his election. Such an election once made is final and irrevocable after any person liable to pay the debt, whether as principal or surety, has changed his position and assumed an obligation which is the result of such election. The authorities to this effect are so numerous that it will be necessary to cite but a few of them. ( Kilpatrick v. Germania Life Ins. Co., 183 N. Y. 163; Pizer v. Herzig, 120 App. Div. 102; Brown v. Mason, 55 id. 395; affd., 170 N. Y. 584.)
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170 A.D. 558 *; 156 N.Y.S. 695 **; 1915 N.Y. App. Div. LEXIS 6087 ***
Mary Ost, Respondent, v. Henry Mindlin and Others, Defendants, Impleaded with Louis Koch and Abraham Pozner, Appellants
Prior History: [***1] Appeal by the defendants, Louis Koch and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of November, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 19th day of November, 1914, denying appellants' motion for a new trial made upon the minutes.
Disposition: Judgment and order reversed, new trial ordered, costs to appellants to abide event.
mortgage, election, foreclosure action, whole amount, discontinuance, declare, waived, installment, default, guarantors, holders, discharged, assigned, premises, surety
Civil Procedure, Bonds, Sureties, Liability, Business & Corporate Compliance, Contracts Law, Standards of Performance, Creditors & Debtors, Pleadings, Time Limitations, Extension of Time, General Overview, Procedural Matters, Types of Contracts, Guaranty Contracts