Citizens National Bank v. Mintz

245 A.D. 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1935
• Status: Published

Opinion

Order granting motion for judgment on the pleadings and the judgment entered thereon reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. To entitle a plaintiff to summary judgment, where an answer sets up section 1077-b of the Civil Practice Act as a defense, it must appear without contradiction that an action is maintainable to foreclose a mortgage given simultaneously as security for the payment of a note. The complaint in tMs case does not allege that interest on the note is due and remains unpaid, nor that taxes remain unpaid after notice and demand. Lazansky, P. J., Young, Carswell, Tompkins and Johnston, JJ., concur.