House v. Carr

125 A.D. 89, 109 N.Y.S. 245, 1908 N.Y. App. Div. LEXIS 2719

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1908
• Status: Published

Opinion

Kruse, J.:

The Court of Appeals has decided in this case that the plaintiffs are not entitled to affirmative relief restraining the sale of the mortgaged premises under the power of sale contained in the mortgage merely because the Statute of Limitations has run against the mortgage. (House v. Carr, 185 N. Y. 453.) Counsel for the appellants earnestly contends, however, that the learned trial court erred in dismissing the complaint. ' He urges that the facts set forth in the complaint, showing that the Statute of Limitations has run against the mortgage, are equally well pleaded as a payment, or, at least, that no payment having been made on the mortgage within the twenty years after it became due, a ponclusive presumption follows therefrom as a matter of law that the mortgage has been paid, and that, therefore, the allegation amounts to a plea of payment.

We do not regard the question an open one. This complaint was before the Court of Appeals, and it was there distinctly stated in the opinion that payment was neither pleaded nor proven. Chief Judge Cullen points out that if the plaintiffs have any proof of payment, it may be given upon a new trial under an amendment to the complaint.

The plaintiffs seem to have acted upon this suggestion and made a motion at Special Term for leave to amend the complaint, which Was granted upon terms; but the terms were not complied with, the plaintiffs electing to stand upon their original complaint, without amendment. While the facts stated in the complaint are entirely competent as evidence upon the question of payment, and unexplained may establish that the mortgage has been paid,' there is no allegation of payment in the complaint.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.