Opinion
July, 1929.
Judgment dismissing complaint reversed upon the law and the facts, with costs, and judgment directed for plaintiff as prayed for in the complaint, with costs. Plaintiff was not obligated to plead the alleged extension agreement of April, 1927, or the breach thereof. The extension agreement was a matter of defense that should have been pleaded in the answer if it had any validity. It had no validity as a defense since it was breached by defendant, which fact entitled plaintiff to enforce the mortgage under its original terms. Findings of fact numbered 5, 6 and 7 and conclusions of law numbered 2, 3 and 5 are reversed; plaintiff's proposed finding of fact numbered 5 is found, and his proposed conclusions of law numbered 1, 2, 3 and 4 are approved and adopted. Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ. concur.