Opinion
November 28, 1949.
Appeal from Supreme Court, Albany County.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ.
The complaint states a cause of action for the foreclosure of a mortgage. The answer sets up an affirmative defense to the effect that the cause of action stated in the complaint did not accrue within forty years before the action was commenced and was, therefore, barred by section 31 of the Civil Practice Act. The defendants urge that the defect complained of appears upon the face of the complaint. We are of the opinion that section 31 of the Civil Practice Act does not apply to an action for the foreclosure of a mortgage. Moreover, a complaint will not be dismissed upon the bare contention that it shows upon its face dates which might indicate that some Statute of Limitations has run ( Locke v. Pembroke, 280 N.Y. 430; Matter of Weil v. Rothschild, 251 App. Div. 639). Such a defense must be raised by answer and, when pleaded as an affirmative matter, is deemed to have been controverted. Order unanimously affirmed, with $10 costs.