Opinion
October, 1930.
Order denying plaintiff's motion for judgment on the pleadings reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. As the plaintiff has not demanded any deficiency judgment against the defendants, a counterclaim based upon plaintiff's breach of a covenant contained in his deed may not be interposed in this action to foreclose a purchase-money mortgage. ( National Fire Ins. Co. v. McKay, 21 N.Y. 191; Merchants' Nat. Bank v. Snyder, 52 App. Div. 606; affd., 170 N.Y. 565; Lipman v. J.A.I. Works, 128 id. 58.) Lazansky, P.J., Young, Kapper, Scudder and Tompkins, JJ., concur.