
    (98 App. Div. 487)
    BRIGGS v. WEEKS et al.
    (Supreme Court, Appellate Division, Fourth Department.
    November 23, 1904.)
    1. Mortgages—Foreclosure—Extension of Time of Payment—Answer as Evidence.
    In a suit to foreclose a defendant’s original and amended answer set up an agreement for the extension of the time of payment. Plaintiff offered in evidence the original and amended answer. No other evidence was given with reference to such agreement. Held, that the right to foreclose was defeated, the original answer having been superseded by the amended answer, except as evidence, and its introduction in evidence giving effect to the statement therein alleged.
    Williams, J., dissenting.
    Appeal from Trial Term, Niagara County.
    Action to foreclose a mortgage by Philena Briggs against Alice I. Weeks and another. From a judgment of foreclosure and sale, and from an intermediate order denying an application for an order settling the issues of fact and directing their trial by a jury, and from an order denying an application for a rehearing, defendants appeal. Judgment reversed.
    Orders affirmed.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
    Henry M. Davis, for appellants.
    Charles M. Southworth, for respondent.
   STOVER, J.

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The amended answer superseded the original, and so far as the trial of the action was concerned, except for its introduction by the plaintiff as a piece of evidence, the original answer had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bind the party without a formal introduction as evidence; but in the case of the original answer, which has been superseded, and is out of the case, no reason is suggested for its introduction as evidence, except to give effect to the statements therein contained.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 uncontradicted, 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 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 N. Y. 294; Mott v. Ice Co., 73 N. Y. 543. The orders brought up for review should be affirmed.

Judgment reversed and new trial ordered, with costs to the appellants to abide event. Orders affirmed, without costs. All concur, except WILLIAMS, J., who dissents.  