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

Appellate Terms of the Supreme Court of New York·Decided February 16, 1937·Published

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. '

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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. '

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

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Opinion

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