
    Sophia E. Beach, Respondent, v. John Shanley, Appellant, Impleaded with Others.
    
      Mortgage foi'eclosure — admission of the allegations of the complaint, accompanied with a denial that the principal is due and an allegation that an extension was granted — election to take advantage of the thirty-day interest clause not presumed — when the clause is inapplicable to the extension.
    
    Where the complaint in an action, brought November 11, 1897, to foreclose a mortgage, alleges that the mortgage became due March 4, 1897, and that no interest had been paid since that date, and also that the bond and mortgage contained a thirty-day interest clause, an answer which, first, admits all allegations of the complaint not thereinafter specifically denied; and, second, denies that any sum whatever was due the plaintiff on account of the bond and mortgage; and, third, alleges that on or about March 15, 1897, the plaintiff, for a valuable consideration, agreed with the defendant to extend for one year the time for the payment of the principal amount due under said bond and mortgage, and that no sum was due on said mortgage by virtue of the agreement aforesaid, is not frivolous.
    The objection that, as the .answer admitted that by the terms of the bond and mortgage it became due on March 4, 1897, the denial that there was anything due thereon was a mere-conclusion of law and raised no issue of fact is untenable, as, when taken in connection with the affirmative defense, the pleading is fairly to be construed as denying that anything was due because there had been an unqualified extension of the time of payment of the principal sum secured by the bond and mortgage.
    The action having been brought upon the theory that the principal of the bond and mortgage had become by its terms due, it cannot be sustained upon the theory that the interest clause contained in the bond and mortgage applied to the extension alleged in the answer and that, it appearing that interest had been due for more than thirty days, the plaintiff had the right to elect that the principal sum should become due and had so elected by commencing the action.
    
      Semble, that the interest clause did not apply to the extension alleged in the answer and that the allegation of the interest clause in the complaint was irrelevant and inapplicable to the cause of action set out in the complaint.
    Appeal by the defendant, John Shanley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of March, 1898, overruling the answer interposed by said defendant as frivolous, and referring the action to a referee to ascertain and compute the amount due upon the mortgage in suit.
    
      
      Ernest L. Crandall, for the appellant.
    
      Gibson Putzel, for the respondent.
   Van Brunt, P. J.:

It seems to us, upon an examination of the pleadings contained in this record, that the answer of the defendant is not only not frivolous, but raises issues which must be settled upon a trial. This action was brought on the 11th of November, 1897, to foreclose a mortgage which, according to the allegations of the complaint, became due on the 4th of March, 1897, and upon which no interest had been paid from said date. There was an allegation in the complaint that the bond and mortgage contained a thirty-day interest clause, but this allegation was irrelevant and inapplicable to the cause of action set out in the complaint, which was to foreclose a mortgage, the principal of which, by its terms, had become due. The defendant in his answer first admits all allegations in the complaint not thereinafter specifically denied; and, second, denies that any sum or amount whatever is now due or owing to said plaintiff on account of the bond and mortgage in the complaint described ; and, third, for a further an& separate defense, he alleges that on or about the 15th of March, 1897, the plaintiff, for a valuable consideration, entered into an agreement with the defendant whereby she promised and agreed to extend the time for the payment of the principal amount due under said bond and mortgage aforesaid for one year, and no sum or amount is now due said plaintiff on account of said mortgage by virtue of said agreement aforesaid.

It is claimed that as the answer admitted that by the terms of the bond and mortgage it became due on the 4th of March, 1897, the denial that there was anything due thereon was a mere conclusion of law and raised no issue of fact. However this might have been had such allegation stood alone, when it is taken in connection with the affirmative defense in which such denial is again repeated, the pleading is fairly to be construed as denying that anything was due because there had been an absolute and unqualified extension of the time for the payment of the principal sum secured by said bond and mortgage for one year from the 4th of March, 1897; and in order to entitle the plaintiff to proceed with her foreclosure it was necessary for her to establish some fact in avoidance of this new matter set up in the defendant’s answer. To rebut this proposition it is urged that the interest clause contained in the bond and mortgage applied to the extension alleged in the answer; and that it appearing that interest had been due for more than thirty days, the plaintiff had the right to elect that the principal sum should become due, and had so elected by the bringing of the action. It is undoubtedly true that where in order to entitle the plaintiff to bring an action for foreclosure it appears upon the face of the complaint that it is necessary that such election should be made, it has been held that the bringing of the suit is to be deemed an election. But it has never yet been adjr licated that where the complaint alleges that the suit is brought because the principal secured by the bond and mortgage is aótually due, the bringing of the action is to be deemed an election that it shall become due. A party will never be presumed to elect that that shall be which already is; and this is precisely the conditon of this pleading. The complaint alleges that the bond and mortgage is. due and is sought to be foreclosed on that account. There is no intimation that there has been any change in the due date. It is true that the complaint contains the allegation of an interest clause; but that was entirely irrelevant and immaterial so far as the cause of action alleged in the complaint was concerned. It is evident that the plaintiff did not bring her action upon an election under that clause, as has already been stated,' because she alleges that the principal of the bond and mortgage was due, and it was for that reason that she claimed the right to foreclose.

But it does not seem to us that the contention that the interest clause would apply to the extension as alleged in the defendant’s answer is well founded. It is claimed that there are two cases, one in the General Term and one in the Appellate Division, which so hold. An examination of those cases, however, will show that they are not analagous, and were probably correctly decided. In the case of Jester v. Sterling (25 Hun, 344) the agreement was to extend the term of said mortgage until after - six months’ notice in writing. That clearly extended the mortgage and all its provisions. So in the case of Leopold v. Hallheimer (1 App. Div. 202) the period for the j>ayment of said mortgage was extended, which is similar to the'case of Jester v. Sterling, and might well be held to extend all the terms of the mortgage. The answer in the case at bar, liovyever, is that there was an absolute and unqualified extension of the payment of the principal amount due under said bond and mortgage beyond the period at which tins action was commenced. There was no extension of the mortgage; there was simply an allegation of an unqualified extension of the time for the payment of the principal amount — an amount which was then already due — and the further allegation that this extension was made for a valuable consideration, followed by a denial that there was any sum due to the plaintiff.

We are of opinion, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barrett, Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  