
    Thomas J. Redmond, as Executor, etc., of Edward Hughes, Deceased, Respondent, v. Elizabeth A. Hughes, Individually and as Administratrix, etc., of John J. Hughes, Deceased, Appellant, Impleaded with Edward Raymond Hughes and Others, Defendants.
    Second Department,
    May 29, 1912.
    Mortgage — foreclosure —presumption of payment — payment affirmative defense—burden of proof—rulé 60 of the General Rules of Practice construed.
    In an action for the foreclosure of a mortgage, brought by the assignee of the mortgagee against the administratrix and infant children of the mortgagor, the infants through their guardian answered generally and the administratrix set up the affirmative defense of payment. The mortgage had been due but a short time. The plaintiff died pending the trial of the issue and his executor was substituted as plaintiff. At the trial tlie substituted plaintiff produced in evidence the bond and mortgage and the written assignment thereof to his decedent, and rested "without further proof. Upon the refusal of the court to grant the defendants’ motion for a dismissal of the complaint upon the ground that it was incumbent upon the plaintiff to prove that the bond and mortgage had not been discharged by payment, the defendants rested and judgment was granted in favor of the plaintiff.
    
      Held, 'that the judgment should be affirmed;
    That the common-law presumption of payment, which obtains after the expiration of twenty years from the maturity of an obligation under a sealed instrument, did not arise;
    That payment is an affirmative defense, and the. burden of pleading and proving the same was upon the defendants.
    The provision of rule 60 of the General Rules of Practice, that “If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees,, the order of reference ■ shall also direct the person to whom it is. referred tó take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any. payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for judgment of foreclosure and sale,” does not relate in any way to a trial by the court where issues arise upon the pleadings in the action.
    Hence, it was not obligatory upon the plaintiff to give evidence as to any payments which may have been made on the bond and mortgage.
    Appeal by the defendant,. Elizabeth A. Hughes, individually and as administratrix, etc., of John J. Hughes, deceased, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of November, 1911, upon the decision of the court rendered after a trial at a Special Term of said County Court.
    
      George Thoms [Joseph T. Weed with him on the brief], for the appellant.
    
      Lewis C. Grover [James W. Redmond with him on the brief], for the respondent.
   Carr, J.:

The defendant Elizabeth A. Hughes, individually and as administratrix of John J. Hughes, deceased, appeals from a judgment of the County Court of Kings county, entered in favor of the plaintiff in an action brought to foreclose a mortgage. The mortgage in question was made by John J. Hughes, deceased, and was accompanied by a bond for the sum of $2,625. Both instruments bore date April 15, 1907, and were payable on July 15, 1908, with interest at the rate of five and one-half per cent per annum, and were made in favor of and delivered to one Greenman and others as executors and trustees under the will of Henry Greenman, deceased. On June 22, 1908, the mortgagees, by an instrument in writing bearing said date, assigned the bond and mortgage in question to one Edward Hughes. The mortgagor, John J. Hughes, died on or about February 8, 1909, leaving a widow, Elizabeth A. Hughes, who was appointed his administratrix, and two minor children, Irene and Edward R. Hughes, as his hens at law. Edward Hughes, the assignee, brought this action of foreclosure upon the bond and mortgage in question, and in his complaint alleged that the defendants had failed to comply with the conditions of said bond and mortgage in that they had failed to pay the principal sum thereof, together with the accrued interest on the maturity of the bond and .mortgage. A guardian ad litem was appointed for the infant defendants, who answered generally and the defendant Elizabeth Hughes, individually and as administratrix, put in an answer setting up the affirmative defense of payment.

Pending the trial of the issues, the plaintiff, Edward Hughes, died, leaving a last will and testament of which the present plaintiff is the executor, who was thereupon substituted as plaintiff. The action was brought on regularly for trial at the County Court of Kings county in May, 1911. At the trial thereof the substituted plaintiff produced in evidence the bond and mortgage and the written assignment thereof to his decedent, Edward Hughes, and rested without further proof. The defendant Elizabeth Hughes moved to dismiss the complaint on the ground that it was incumbent upon the plaintiff to prove that the bond and mortgage had not been paid and thereby discharged. On the denial of this motion the defendants rested without putting in any proof. Judgment was granted in favor of the plaintiff for the foreclosure of the bond and mortgage in question. From this judgment Elizabeth A. Hughes has appealed individually and as administratrix, and the infant defendants have not joined in the appeal.

It is urged by the appellant that, under the authority of the decision in Conkling v. Weatherwax (181 N. Y. 258), the burden was on the plaintiff to establish non-payment of the bond as a condition precedent to a judgment of foreclosure. It will be noted that the bond in question was overdue at the time this action was brought, and but little time had elapsed since the date of the maturity of the bond and the bringing and trial of the action; so, therefore, the common-law presumption of payment which obtains after the expiration of twenty years from the maturity of an obligation under a sealed instrument did not arise.

Payment is an affirmative defense, and the burden of pleading and proving the same was upon the defendants. There is nothing to the contrary in what was actually decided in Conkling v. Weatherwax (supra). In any event, the production of the bond and mortgage from the possession of the plaintiff was, in itself, some evidence that the obligations therein expressed were still subsisting, and had not been discharged by payment.

The appellant cites in behalf of her contention a decision of the former General Term in this department, in United States Trust Co. v. Stanton (76 Hun, 32; affd., 145 N. Y. 620). In that case an action was brought to foreclose a mortgage accompanied by a bond under seal. More than twenty years had elapsed since the date of maturity of the obligation of the bond. The defendants answered, setting up the Statute of Limitations. At the trial the plaintiff relied upon an indorsement on the bond showing a payment of interest within the period of twenty years after the maturity of the bond. It was held that the burden was on the plaintiff to show that this alleged payment of interest was made within the twenty-year period. That case, however, does not affect the question here at bar. For under the circumstances of that case the common-law presumption of payment of the bond applied, unless rebutted by the plaintiff. Here there is no presumption of payment, under the circumstances of this case.

It is further urged that, inasmuch as some of the defendants were infants, it was obligatory on the plaintiff on the trial of this action to give evidence as to the facts and circumstances stated in the complaint, and likewise as to any payment which may have been made on the bond and mortgage in question. In support of this contention, rule 60 of the General Rules of Practice is relied upon. That rule relates to the procedure to he followed in case of the appointment of a referee to compute the amount due upon the bond and mortgage in an action of foreclosure. It contains in part language as follows: “If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for judgment of foreclosure and sale.”

This rule does not purport to relate in any way to a trial by the court where issues arise upon the pleadings in the action. Nor do we think that it should be held by implication to apply to such a situation as ig now presented before us. Here the plaintiff in the action at the time of the trial was the executor of the original plaintiff, who had died, and he was not substituted as plaintiff in place of the decedent until the action was at issue. There was nothing to indicate that this substituted plaintiff had any knowledge whatever in regard to the bond and mortgage, or of any possible payment thereof. The original plaintiff had died, and he surely could not be examined on the subject-matter. If anything could be disclosed by an examination of the original mortgagees, they could have been produced by the defendant' at the trial. The plaintiff here had done all that he was required to do by any rule of law to put the defendants upon their proof of the affirmative defense of payment.

The judgment should be affirmed, with costs.

Jenks, P. J., Thomas, Woodwabd and Rich, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with costs.  