#### Barbara Krebs, Respondent, *v.*Louise H. Carpenter, Individually and as Executrix, etc., of Richard E. Carpenter, Deceased, Appellant, Impleaded with Benedict A. Klein and Others, Defendants.

First Department,

March 20, 1908.

Mortgage — contract extending time of payment — consideration pleading — answer.

An agreement, based upon a sufficient consideration extending the time of the payment of a mortgage, is a valid defense to an action of foreclosure commenced before the time to which the payment of the mortgage debt has been extended.

Where the owner of a leasehold, who has not assumed a prior mortgage thereon,pays interest to the mortgagee in consideration of his agreement to extend the mortgage to a specified date, there is a good consideration for the contract to extend. Hence, an answer setting out the facts aforesaid states a good defense to an action of foreclosure brought before the expiration of the extension, and it should not.be stricken out as frivolous.

This is so, although there be no allegation as to an extension of payment of the bond secured by the mortgage, as such is the reasonable intendment.

The .objection that the answer does not allege that the agreement extending the time was in writing is - not available on a motion to strike out the answer when the fact that it was not in writing does not appear on the face of the pleading.

Such answer need not allege that there was an absolute, unqualified extension of time of payment, as under the allegations aforesaid that may be inferred by reasonable intendment.

So, too, an allegation that the plaintiff agreed to extend the time of 'payment sufficiently alleges the execution of an actual extension, such being the fair inference.

The payment .of interest upon an indebtedness by a person who is not liable to pay the same -is a good consideration for an extension of time to pay the balance due.

Appeal by the defendant, Louise EL. Carpenter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1908, overruling the said defendant’s answer as frivolous and directing judgment for the plaintiff thereon.

*Joseph L. Pascal,*for the appellant.

*George F. Langbein,*for the respondent.

*756Ingraham, J.:

The action is to .foreclose a mortgage dated the 1st of July, 1892, and payable on the 1st of July, 1897, executed by' the defendant Benedict A. Klein upon a leasehold of real property. The complaint alleges .that the indenture of lease and leasehold premises were by various mesne assignments assigned to one Richard E. Carpenter who died possessed of the said indenture of lease on or about November 6, 1906, leaving a last will and testament duly admitted to probate by which this leasehold was devised and bequeathed to the defendant -Louise H. Carpenter, who was also appointed sole executrix of the said will and letters were issued to her. It is "not alleged that Richard E. Carpenter or the defendant Louise H. Carpenter assumed the payment of the amount secure'd by this mortgage or the interest thereon. The complaint further alleges that the defendants have failed to .comply with the conditions of the bond and mortgage by omitting to pay the sum of $12,500, and that there is now due the plaintiff upon the said bond and mortgage that sum with interest from the 1st of .July, 1907, and that each and all of the defendants have or claim to have some interest in or lien upon the said mortgaged premises which accrued subsequently to the lien of the said mortgage. The defendant Louise H. Carpenter, without denying any of the allegations of the complaint, alleges that on or about the 2d of July, 1907, in consideration of the sum of $312.50 paid as interest on the mortgage described in the complaint and in addition thereto the sum of $35 then or thereabouts paid by the answering defendant to the plaintiff, the plaintiff agreed to extend the mortgage described in the complaint to May 1, 1911. This answer the court below has held to be frivolous and directed judgment for the plaintiff. ■ -

It is quite evident that a valid agreement based upon a sufficient consideration extending the time of the payment of this mortgage would be a defense to the action, to foreclose the mortgage commenced before, the time to which the payment of the mortgage debt has been , extended. The plaintiff relied on *Olmstead*v. *Latimer*(158 N. Y. 313) as an .authority to sustain the order appealed, from. The agreement in that case recited no consideration and it was held that an agreement to-extend the time without other con-' sideration than a mere promise was not enforcible for want of con*757sideration. But in that case there was no consideration for the agreement either alleged or proved;' here - the consideration as alleged is that the answering defendant, who was not liable to pay either the principal or interest of the bond or mortgage, paid to the plaintiff for interest on the mortgage $312.50, and in addition paid the sum of $35, and in consideration of this payment the plaintiff agreed to extend the mortgage until the 1st of May, 1911. There is nothing said about extending , the payment of the bond, but as the mortgage was given to secure the bond I think it is alleged by reasonable intendment that it was the payment of the debt secured by the mortgage that was extended. Nor is it alleged that this agreement was -in writing, but as it does not appear from the answer that it was not in writing, that objection is not available. The plaintiff also claims that there is no allegation that there was an absolute unqualified extension of the time. for the payment of the principal sum secured by the bond and mortgage, but I think that can also be inferred by reasonable intendment. The agreement is alleged to be*on the part of the plaintiff in consideration of the payment of á sum of money by the answering defendant. An agreement to extend seems to me to be a sufficient allegation of an execution of the actual extension of the time for payment. The fact that a defense is argumentatively or inartiiicially stated is not a justification for the' court overruling it 'as frivolous. If facts'are alleged from which an agreement to extend thé time of payment based upon a sufficient consideration may fairly be inferred, I do not think that the answer should be overruled as frivolous, but the issues should be tried. There can be no question but what payment of interest upon an indebtedness by a person who is not liable to pay the indebtedness is a good consideration for an extension of the balance due. *(Jester*v. Sterling, 25 Hun, 344, and cases there cited.)

I think, therefore, the order appealed from must be reversed, with ten dollars costs and disbursements, and motion for judgment upon the pleadings as frivolous denied, with ten dollars costs.

Laúghlin, Clabke, Houghton and Scott, JJ., concurred.

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