SECOND DEPARTMENT, MARCH TERM, 1897. App. Div.] Jersey. It was also claimed that some parties were intending to interpose a defense to the foreclosure action. It was testified by Phyfe that, within a week or ten days after the commencement of the foreclosure proceedings, he saw Mr. Welch, the second vicepresident of defendant, and who acted for it, and laid before him. offers which Phyfe had received to lease the hotel when completed, from which it appeared that enough money would be received if the scheme could be carried out to pay all interest and taxes, care for all liens, and leave a surplus for Phyfe & Campbell. Upon this showing Welch agreed that if Phyfe would aid in procuring parties to appear in the foreclosure action and remove all obstacles in the way of procuring final judgment therein defendant would not enforce the judgment of foreclosure, but would give Phyfe & Campbell three years from the first day of the following September to pay the amount of principal and interest, they procuring responsible parties who would agree to pay the defendant upon the first day of each month, beginning with September 1, 1888, one month's interest, and in December or January of each year the year's taxes longest due. Phyfe & Campbell were to procure subsequent lienors to postpone their liens and subordinate them to this arrangement, and, if this was carried out, the defendant would execute an agreement embodying its terms. It is conceded that no agreement in writing was made between Phyfe & Campbell and the defendant. But it is shown that about February 17, 1888, the defendant wrote a letter to Mr. North, an attorney representing John C. Anderson, which embodied the oral agreement entered into between Phyfe & Campbell and the defendant. This letter was modified and superseded by one written April 12, 1888, which is as follows: "NEW YORK LIFE INSURANCE COMPANY, "T. M. NORTH, Esq., "346 & 348 BROADWAY. "Of North, Wagstaff & Ward, "New York City: "DEAR SIR. As the parties now proposing to lease the Plaza Hotel are not the ones who had it in contemplation at the date of my last letter to you, I send you this as a substitute. "The New York Life Insurance Company agrees with the lessors SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 14. and lessees named in said lease that it will not, for the period of five years from September 1st, 1888, enforce by sale of the mortgaged premises any judgment of foreclosure it may obtain in the action now pending for the foreclosure of its mortgages on said hotel, provided: "First. That the parties to said lease shall complete and furnish the Plaza Hotel in a manner suitable to a first-class city hotel by September 1st, 1888. "Second. That said parties shall, from the rent of said hotel or otherwise, pay to said New York Life Insurance Company, on the first day of every month, beginning with September 1st, 1888, one month's interest at 6% on the judgment of foreclosure in favor of said company, or until the same shall have been obtained, on the mortgages held by said company, on the said Plaza Hotel premises and on the interest and expenses then due. "Third. That said parties shall, from said rent or otherwise, on the first day of January in each of said five years or within 30 days thereafter, pay one year's tax on said Plaza Hotel, namely, that tax which has been due the longest time, and also any assessments which may be laid upon said premises during each and every of said five years, and all premiums for insurance on the Plaza Hotel to the full amount now insured thereon; also the annual water rate on or before August 1st in each year. "This agreement is to be binding on said Company only until the failure on the part of the parties to said lease to comply with any of the above conditions; in the event of which failure for Ten days the said Company shall be at liberty to proceed to a sale of said Mortgaged premises, under the judgment in said foreclosure action, and this agreement shall become void. "It is agreed and understood that the owners of said property shall afford the New York Life Insurance Company all facilities in their power toward obtaining judgment in said foreclosure suit. It is not claimed that the oral agreement between Phyfe & Campbell and the defendant was different from the terms contained in App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. the letter. On the contrary, the plaintiffs rely upon the letter as establishing the terms of the oral agreement, and it is in this view that we consider it. It stands undisputed that Phyfe procured the appearance of his wife in the foreclosure action after the oral negotiation. And the claim of the plaintiffs now is that Phyfe & Campbell fulfilled to the letter all of their engagements with the defendant, and that the latter was guilty of a breach of its engagement to them by which they sustained a loss of all interest in the hotel property and suffered damage in a sum amounting to more than $1,500,000, which the plaintiffs, as assignees of Phyfe & Campbell, are now entitled to recover. It is this agreement and its breach which became the issues of the trial and upon which the plaintiffs must now stand or fall. Aside from the question of damages, the court submitted to the jury two main questions: First, was a binding agreement made between Phyfe & Campbell and the defendant, whereby the latter was to postpone enforcement of its judgment of foreclosure for a period of five years. Second, was the contract, if made, broken by the defendant? Upon these questions it is claimed by the plaintiffs that the verdict was against the weight of evidence, which calls for a reversal of the judgment. It is claimed by the defendant that the judgment of foreclosure and sale constituted a bar to the plaintiffs' action. If not a bar, that it never made any binding agreement; that if the letter be treated as an agreement it was never complied with by Phyfe & Campbell, and that in fact the failure to carry out the arrangement was due to Phyfe & Campbell, who failed to procure the consents and lease for which the contract stipulated. We do not think that the judg ment constituted a bar to the action. The agreement was made in contemplation of the entry of judgment in fact, provided for it. The stipulation related to its enforcement, so that whether the judgment was entered or stood ready for entry could not legally change the effect of the agreement, as either condition might exist under it at the option of the defendant. The consideration for such extension was good, for, if carried out, it relieved the defendant from resorting to a proceeding to obtain substituted service upon the non-resident defendant, which was a distinct advantage to it. And in addition to this, it was to obtain an engagement by responAPP. DIV.-VOL. XIV. 78 SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 14. sible parties which secured the payment of its judgment and interest charge, the discharge of taxes which were a lien superior to the lien of its mortgages and judgment, and also secured an engagement for the completion and furnishing of the building by September 1, 1888, as a first-class hotel. It was quite competent for the parties to make such an agreement, and the entry of judgment thereunder would not affect its terms or change its binding force. We are to bear in mind, however, that the loans made by the defendant to Phyfe & Campbell were the superior liens, and that in the record before us nothing appears which is legally sufficient to establish any defense existing in favor of Phyfe & Campbell, or in favor of any other lienor which would defeat or impair the mortgages which became the subject of foreclosure. If all parties in interest, therefore, were made parties to the foreclosure action, their interest must bow in subordination to the lien of the defendant. In this respect there was nothing which Phyfe & Campbell could do, or omit to do, which would in the slightest degree present or remove any legal obstacle standing in the way of the defendant's procuring its judgment of foreclosure and enforcing the same. The lienors, therefore, as well as Phyfe & Campbell, could interpose no obstacle to defendant's obtaining judgment, as it will not be presumed that they would attempt to assert a defense when no defense existed to assert. So that as to all parties aside from the non-resident, and as to her by invoking the remedy appropriate thereto, the defendant could have proceeded to judgment and sale standing entirely upon its legal right. It is, therefore, of little consequence that Phyfe & Campbell omitted to answer, or that they took steps to induce other lienors to desist therefrom. The questions of fact, therefore, narrow themselves to a consideration of whether the evidence shows that a contract was made, and, if so, whether the appearance of the non-resident was procured by Phyfe; did he procure the lease ready to be delivered, together with consents for the extension of the claims of subsequent lienors, and could the hotel itself be completed and furnished as a first-class city hotel by September 1, 1888? So far as the first of these questions is concerned, we think the evidence was sufficient to warrant the jury in finding that a binding contract was entered into between the parties, and that the case in this respect was properly submitted to the jury. We also think the evidence was sufficient for App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. the jury to find that Phyfe procured the appearance of his wife and of Mrs. Campbell in the foreclosure suit. Whether in other respects he fulfilled the contract is not so clear. Before or after the letter of April twelfth, which we have quoted, a corporation called the "Plaza Hotel Company, Limited," was organized for the purpose of leasing the hotel when completed. Prior to the creation of this corporation there had been negotiations between Phyfe & Campbell and the various lienors with other parties to enter into a lease, and such negotiations were the subject of conversation between Phyfe and the defendant, and much testimony was given relating thereto. But all this failed, and the case came to rest upon the lease executed by the Plaza Hotel Company as the one answering the requirements of the contract. John A. Amundson was the attorney for Phyfe & Campbell, and represented them upon the negotiations with all the parties. Upon the 12th day of May, 1888, Mr. North delivered to Mr. Amundson the agreement of the defendant of April 12, 1888; the consent of the bondholders represented by Charles A. Peabody, as trustee of the mortgage given to secure the payment of the bonds, not to enforce the payment of such mortgage for five years from September 1, 1888, if the lease of the hotel was made, containing a covenant for the application of the rents to the payment of current interest upon the bonds, after said first day of September; also consent of John C. Anderson to extend enforcement of his mortgage for the period of five years from September 1, 1888, conditioned upon the execution of a lease by the hotel company, containing a covenant to pay him $5,000 a year during the first five years and $10,000 a year for the next five years, payments to be made semi-annually after said September first. These papers were delivered to Mr. Amundson upon condition that if a lease was made and interchanged between Phyfe & Campbell and the Plaza Hotel Company, containing covenants for the payment mentioned in the consents or that if a contract was made and interchanged between Phyfe & Campbell and certain named parties interested in the hotel company for such a lease, these consents should be delivered to Phyfe & Campbell, otherwise to be returned to North. Subsequently, and on June 30, 1888, Anderson executed another agreement to extend payment of his mortgages for a period |