Jackson Heights Apartment Corp. v. Staats

In an action upon a bond, order denying plaintiff’s motion for summary judgment, and granting defendants’ cross motion for dismissal of the complaint, and the judgment entered thereon, reversed [781] on the law, without costs, defendants’ cross motion denied, plaintiff’s motion granted, without costs, to the extent of directing judgment in its favor for the installments of interest which accrued during the period from September 18, 1940, and September 1, 1944, and the matter remitted to Special Term to enter a judgment accordingly. At the time the alleged cause of action accrued on default of payment of interest on October 1, 1932, the bond was secured by mortgage and, notwithstanding the lien of that mortgage was extinguished thereafter by sale of the mortgaged property in foreclosure of a prior mortgage on November 17, 1943, the controlling Statute of Limitations is section 47-a of the Civil Practice Act, under which the action, insofar as it relates to principal, was barred on September 1, 1944. (Kirsclmer V. Cohn, 270 App. Div. 126.) The complaint, however, states a good cause of action for the installments of interest (not barred by section 47-a of the Civil Practice Act) for the period of six years before the commencement of the action (Civ. Prac. Act, § 48) to the termination of the limitation period as to principal, or between the 18th of September, 1940, and the 1st of September, 1944. (Kirsclmer v. Cohn, supra; Ernst v. Schaack, 271 App. Div. 1012.) Hagarty, Acting P. J., Carswell, Johnston, Nolan and Sneed, JJ., concur.