I am in favor of the affirmance of this judgment, and concur in the view expressed by Mr. Justice Woodwabd as to the construction of the covenant under which the plaintiff claims the option of declaring the whole principal sum due. But, to use the judicial vernacular of the day,. I think the question is “ academic.” The mortgage was given to secure the payment of monthly installments to become due upon certain shares of the plaintiff’s stock as well as other debts. The complaint alleges' that the defendant Jaeger has made default in the mortgage by failing to pay the sum of eight dollars and fifty cents monthly premium due on the 1st day of December*, 1896. If the said defendant did make this default this action was properly brought, and upon the right to maintain it the ques- . tion of whether the whole principal sum had become due or only the eight dollars and fifty cents, is immaterial. If the defendant *95Jaeger was in default as to the payment of eight dollars and fifty cents, the judgment appealed.from was erroneous. But the defendant in her answer denied all default, and the referee has not found any. We.must, therefore, assume that the allegation that defendant has made default in the payment of the sum of eight dollars and fifty cents which ■ became due . on December 1, 1896, was unproved. It follows that on the record before us the judgment of the referee was correct. It may be that if the appellant had printed the evidence in the case instead of the affidavits in proceedings on a motion to open the default previously taken in the cause, which have no possible bearing on the subject before us, the result of this • appeal might be different.
Bartlett, J., concurred.
Judgment affirmed, with costs.