Briggs v. Weeks — 98 A.D. 487

Majority

p. 487

Philena Briggs, Respondent, v. Alice I. Weeks and Albert E. Weeks, her Husband, Appellants.

Headnote

Evidence — the introduction by the plaintiff in a mortgage foreclosure action of the defendant’s answer setting up an extension of the time of payment establishes that fact — it is not necessary to introduce a pleading in evidence.

The defendants in an action brought to foreclose a mortgage interposed an answer which alleged, first, that after the making and execution of the bond and mortgage the defendants and the plaintiff entered into an agreement whereby, for a valuable consideration, the time of payment of said mortgage was extended, and, second, a denial that there was any sum due upon the bond and mortgage.

Thereafter they interposed an amended answer in which the defense of the extension was reiterated and several other defenses interposed. Upon the trial of the action the plaintiff offered in evidence both the original and the amended answer. No other evidence was given with reference to the alleged agreement extending the time of the payment of the mortgage.

Held, that in view of the condition in which the plaintiff had left his case by introducing the answers in evidence without explanation or qualification, the making of the agreement of extension was established and that the plaintiff was not entitled to j udgment of foreclosure and sale.

Williams, J., dissented.

It is not necessary to introduce a pleading in evidence as it is always before the court, and its admissions bind the parties without its formal introduction as evidence.

Appeal by the defendants, Alice I. Weeks and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 19th day of August, 1902, upon the decision of the court directing a judgment of foreclosure and sale, with notice of an

p. 488

intention to bring up for review an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendants’ application for an order requiring the issues of fact to he tried by a jury and also from an order entered in said clerk’s office on the 2d day of July, 1902, denying a rehearing of said application.

Henry M. Davis, for the appellants.

Charles M. Southworth, for the respondent.

The defendants interposed an answer which alleged, first, that after the making and execution of the bond and mortgage the defendants and the plaintiff entered into an agreement whereby, for a valuable consideration, the time of payment of said mortgage was extended, and, second, a denial that there was any sum due upon the bond and mortgage. Subsequently, an amended answer was served, in which the defense of the extension was reiterated and several other defenses interposed. Upon the trial of the action, for some unexplained reason, the plaintiff offered in evidence both the original and the amended answer. No other evidence was given with reference to the alleged agreement extending the time of payment.

The amended answer superseded the original, and so far as the trial of the action was concerned, except for its introduction by the plaintiff as a piece of evidence, the original answer had nothing whatever to do with the case. It is not necessary to introduce a pleading in evidence, as it is always before the court, and its admissions bind the party without a formal introduction as evidence ; but in the case of the original answer, which has been superseded and is out of the case, no reason is suggested for its introduction as evidence, except- to give effect to the statements therein contained. The plaintiff was probably at liberty to question the admissions and to give proof denying them, but not having done so it must be assumed that he intended the statements of the answer to stand as evidence, and, standing un contradicted, it establishes the fact that the agreement of extension was made ; although hearsay, yet being unobjected to by the other side, the party offering it cannot be heard to question its admissibility now. We think

p. 489

that the condition in which 'the plaintiff left his case by the introduction of this evidence without explanation or qualification defeated his action and that the judgment for this reason must be reversed. (People v. Norton, 9 N. Y. 176 ; Dodge v. Crandall, 30 id. 294 ; Mott v. Consumers’ Ice Co., 73 id. 543.)

The orders brought up for review should be affirmed.

All concurred, except Williams, J., who dissented.

Order denying defendants’ application for an order settling the issues of fact herein and directing their trial by a jury, and order denying defendants’ application for a rehearing of such former application affirmed, without costs. Judgment reversed and new trial ordered, with costs to abide event.

Cases cited

People v. Norton 9 N. Y. 176 N.Y. p. 489