Watamond Realty Corp. v. Schwartz

235 A.D. 700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1932
• Status: Published

Opinion

Order reversed on the law and the facts, without costs, and motion granted to the extent that appellant’s default in answering and in appearing on the trial is opened and the judgment in favor of plaintiff against this appellant, defendant, is vacated; with leave to appellant to serve an answer within ten days after the entry of the order herein, and to litigate with the plaintiff the question of the priority of its mechanic’s lien over that of the plaintiff’s mortgage. The foreclosure sale shah remain undisturbed, and the controversy shah involve only such sums as the plaintiff received as a result of such sale. The matter is remitted to Special Term for trial for the parties to proceed as they are advised under the limitations here imposed. This disposition is made on the ground that the facts were misrepresented to appellant’s attorney, thereby preventing the interposition of an answer; that it is doubtful that a notice of trial was served on the attorney for this defendant, who had made a general appearance; and that it has an apparently meritorious claim with a right to have the subject of its priority determined. (See Watamond Realty Corporation v. Schwartz, ante, p. 700, decided herewith.) Lazansky, P. J., Kapper, Scudder, Tompkins and Davis, JJ., concur.