Byer v. Gilson

In an action to foreclose a mortgage on real property, the answer of the defendant owner of the property interposed the affirmative defense of the Statute of Limitations. This defendant appeals from a judgment of foreclosure and sale entered after a trial before an Official Referee. Judgment unanimously affirmed, with costs. An additional finding is made that payments of principal and interest between August 4, 1942, and February 1, 1953, were made by or on behalf of the owners of the equity of redemption. In our opinion the evidence was sufficient to warrant an inference that the payments of principal and interest regularly made over a period of many years were made by the owners of the equity of redemption or their duly authorized agents. The burden of proving the affirmative defense of the Statute of Limitations rests on the party invoking it. (Beugger v. Ashley, 161 App. Div. 576.) Present — Nolan, P. J., Wenzel, Schmidt, Beldock and Ughetta, JJ.