
    Maria House and Cline E. House, Appellants, v. Lucian C. Carr, as Administrator, etc., of Cynthia Gilbert, Deceased, Respondent.
    Fourth Department,
    March 4, 1908.
    Judgment — insufficient complaint—dismissal for failure to amend.
    Where it has been judicially determined that a plaintiff seeking to enjoin the foreclosure of a mortgage has neither alleged nor proven payment and is not entitled to affirmative relief restraining the sale of the premises, the complaint will be dismissed if the plaintiff fails to comply with the terms imposed on the granting of leave to amend.
    Appeal by the plaintiffs, Maria House and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 10th day of December, 1907, pursuant to an order entered in said clerk’s office on the 2d day of October, 1907, dismissing the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action.
    The action is brought to restrain the statutory foreclosure of a mortgage given October 13, 1870, to secure the payment of $400, the final payment of which was due and payable four years from the date thereof.
    The mortgage was given by the husband of one of the plaintiffs, Maria House, she joining in the mortgage. The husband died in 1895, and his son, the coplaintiff, became the owner of the mortgaged premises under and by his last will and testament, subject to the wife’s right of dower. The mortgage was given to one Cynthia Gilbert, who died in 1902, and thereafter the defendant was appointed administrator of her estate. The mortgage contained the usual power of sale, and in April, 1903, notice was published by the administrator, setting forth that there was claimed to be due and payable at that time the sum of $938.75, the full amount unpaid thereon ; and that the mortgaged premises would be foreclosed by a sale at a stated time and place. The above facts were stated in the plaintiffs’ complaint, and it was further alleged upon information and belief that the indebtedness secured by the mortgage did not accrue within twenty years before the commencement of the foreclosure proceeding; that no payments had been made upon the mortgage within twenty years after the mortgage debt became due and payable, followed by the further allegation that the mortgage and the debt secured thereby were barred by the Statute of Limitations, and that the debt had never been revived or extended by any payment or acknowledgment or promise in writing, signed by the party to be charged therewith. The complaint contained the further general allegation that the mortgage had ceased to be a lien upon the premises for the reason that the debt for which the mortgage was given to secure the payment of did not accrue within twenty years.
    The plaintiffs, after alleging that irreparable injury would be done them by the sale, demanded judgment enjoining the sale, and declaring that the mortgage has ceased to be a lien upon the premises, and directing its cancellation.
    
      O. M. Reilly, for the appellants.
    
      S. C. Huntington, for the respondent.
   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.  