Flushing National Bank v. Thorpe

Appellate Division of the Supreme Court of New York

Flushing National Bank v. Thorpe

251 A.D. 721, 295 N.Y.S. 172, 1937 N.Y. App. Div. LEXIS 7223

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1937

StatusPublished

This text of 251 A.D. 721 (Flushing National Bank v. Thorpe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flushing National Bank v. Thorpe, 251 A.D. 721, 295 N.Y.S. 172, 1937 N.Y. App. Div. LEXIS 7223 (N.Y. Ct. App. 1937).

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Opinion

In an action to foreclose a mortgage, order denying plaintiff’s motion for summary judgment and granting defendants’ motion to dismiss the complaint modified by striking therefrom the provision granting defendants’ motion and inserting in lieu thereof a provision denying the same, and as so modified unanimously affirmed, without costs. Judgment dismissing the complaint vacated, without costs. In our opinion, the failure of the parties to present material proof precludes summary determination of the issues involved. There is not incorporated in the record before us the mortgage which is sought to be foreclosed, the bonds and mortgages which were consolidated according to agreement or the agreement which is alleged to have been made, nor is there any proof as to whether the agreement was oral or written. In the absence of such proof, the efficacy of the agreement that the mortgages deposited thereunder should serve as collateral for future advances, as expressed by the notes, cannot be determined. Present — Hagarty, Johnston, Adel and Taylor, JJ.; Lazansky, P. J., not voting.

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In an action to foreclose a mortgage, order denying plaintiff’s motion for summary judgment and granting defendants’ motion to dismiss the complaint modified by striking therefrom the provision granting defendants’ motion and inserting in lieu thereof a provision denying the same, and as so modified unanimously affirmed, without costs. Judgment dismissing the complaint vacated, without costs. In our opinion, the failure of the parties to present material proof precludes summary determination of the issues involved. There is not incorporated in the record before us the mortgage which is sought to be foreclosed, the bonds and mortgages which were consolidated according to agreement or the agreement which is alleged to have been made, nor is there any proof as to whether the agreement was oral or written. In the absence of such proof, the efficacy of the agreement that the mortgages deposited thereunder should serve as collateral for future advances, as expressed by the notes, cannot be determined. Present — Hagarty, Johnston, Adel and Taylor, JJ.; Lazansky, P. J., not voting.

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Bluebook (online)

251 A.D. 721, 295 N.Y.S. 172, 1937 N.Y. App. Div. LEXIS 7223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flushing-national-bank-v-thorpe-nyappdiv-1937.