Opinion
March 17, 1937.
Appeal from Supreme Court.
The complaint alleges a conspiracy on the part of the defendants in permitting the foreclosure of a mortgage in the year 1932. Plaintiff had knowledge of the foreclosure action. A few days after the sale he received notice of said sale. Referee's deed under the sale has been given and a new corporation formed and a mortgage given by the new corporation, which mortgage has been assigned to the defendant bank. Plaintiff waited upwards of four years from the commencement of the foreclosure action to institute the present action. It is a well-established principle of equity, that where there is a discretion to bar a right on the ground of delay, the courts will, in the exercise of that discretion, use the Statute of Limitations as a rule to guide their action. ( Politz v. Wabash R.R. Co., 207 N.Y. 113, at p. 130.) Plaintiff's alleged cause of action is not barred by the Statute of Limitations and, therefore, dismissal on the ground of plaintiff's laches was error.
Order reversed, on the law, with ten dollars costs and disbursements to the appellant to abide the event. Hill, P.J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.