Milanese v. Azzarone

Appellate Terms of the Supreme Court of New York

Milanese v. Azzarone

162 Misc. 329, 294 N.Y.S. 479, 1937 N.Y. Misc. LEXIS 1582

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 16, 1937

StatusPublished

This text of 162 Misc. 329 (Milanese v. Azzarone) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Milanese v. Azzarone, 162 Misc. 329, 294 N.Y.S. 479, 1937 N.Y. Misc. LEXIS 1582 (N.Y. Ct. App. 1937).

Pincite

Opinion

Per Curiam.

Although plaintiff sues for money loaned, the facts show the promise to repay is expressed in defendant’s bond, the sole security for which is a simultaneously executed mortgage upon real property. Section 1077-b of the Civil Practice Act is, therefore, -a good defense. To entitle plaintiff to summary judgment it must appear without contradiction that an action is [330]*330maintainable to foreclose the mortgage. (Citizens Nat. Bank of Freeport v. Mintz, 245 App. Div. 759.) As this was not shown, it was error to grant plaintiff’s motion.

Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied.

All concur. Present ■— Levy, Hammer and Callahan, JJ. '

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Although plaintiff sues for money loaned, the facts show the promise to repay is expressed in defendant’s bond, the sole security for which is a simultaneously executed mortgage upon real property. Section 1077-b of the Civil Practice Act is, therefore, -a good defense. To entitle plaintiff to summary judgment it must appear without contradiction that an action is [330]*330maintainable to foreclose the mortgage. (Citizens Nat. Bank of Freeport v. Mintz, 245 App. Div. 759.) As this was not shown, it was error to grant plaintiff’s motion.

Judgment and order reversed, with ten dollars costs to appellant to abide the event, and motion denied.

All concur. Present ■— Levy, Hammer and Callahan, JJ. '

Cite This Page — Counsel Stack

Bluebook (online)

162 Misc. 329, 294 N.Y.S. 479, 1937 N.Y. Misc. LEXIS 1582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milanese-v-azzarone-nyappterm-1937.

Opinion

Related

Cite This Page — Counsel Stack