. I should agree with Mr, Justice Olarke if this plaintiff had, before the actual' receipt of the check for the interest, exercised the election that the principal sum of the mortgáge should be presently due and payable; but só far as appears, however, no. such election had been made before the actual receipt of the check for the interest • that was due. When, therefore, lie attempted to exercise such *109election it must be assumed that he had in his possession the check for the interest sent by the defendant and at that time he had not returned the check or disaffirmed the payment of the interest. . It is disclosed by the evidence that it had been the custom of the defendant to pay the interest by checks, which had been received by the mortgagor without objection. The evidence is undisputed that the check was good, and when it was subsequently returned by the plaintiff no objection was taken upon the ground that it was a check and not money that had been tendered to pay the interest. The contract did not provide that the principal sum should be immediately due and payable upon a default of twenty days in the payment of interest, but that if such a default existed the mortgagee should have the option to declare the principal sum due arid payable. - When, therefore, this defendant sent the check for the interest and the plaintiff received it, the principal sum was not due, the only amount due being the interest. The evidence being that that check was deposited in the post office, directed to the plaintiff, on the first of November, it must be assumed that it was delivered to the defendant on the morning of the second. Before^ therefore, he had exercised his option and declared the principal sum to be presently due he had in his possession a check for the interest.
In all the cases in which it has been held that a court of equity had no power to relieve a mortgagor from such a default it appeared that the election had been exercised so that the amount was actually due and payable before the mortgagor .offered to pay the interest that was in default. It seems to me there is a clear distinction between such cases and a case where the interest due was actually tendered before any election had been made, so that when the interest was actually tendered the only amount due was the interest, and that where the obligor has made a tender of the actual amount due upon his obligation at the time of the tender it gives to a' court of equity the power, when an action is brought to enforce the obligation, to relieve the party from the effect of a failure to pay the interest or the amount due which was attempted to be exercised after the tender was made. What was said by Mr. Justice Hirschberg in Hothorn v. Louis (52 App. Div. 218; affd., 170 N. Y. 576) related to a case where the mortgagee had elected to have the amount declared due and had brought an action to foreclose the *110mortgage before any tender was made or any attempt by the obligor to comply with his obligation.
■ I think,' therefore, the court had. power to make the judgment appealed from and that as by its provisions- the plaintiff was in all respects fully protected it should he affirmed;
Judgment reversed, new-trial ordered, costs to appellant to abide event. •