Opinion
December, 1935.
Plaintiff's action is to foreclose a mortgage in the sum of $8,000 on defendants' premises. The complaint asks for a deficiency judgment against defendant A. Edward Feeney. Said defendant counterclaims for $3,860, being one-half the commissions claimed to have been earned by said defendant and one Brinberg in procuring a sale of other property of plaintiff, and demands an assignment of the bond and mortgage on payment of $4,140 by said defendant to plaintiff. These two sums aggregate the amount due on the mortgage. Without replying to the counterclaim, plaintiff moved on the pleadings and affidavits for summary judgment, which was granted. A referee to compute was appointed, and, on his report, judgment of foreclosure and sale was made. The counterclaim and the affidavits show that there is a question of fact to be tried, and it would be unjust to permit a sale of defendants' premises until a trial of the cause of action set up in the counterclaim. ( Green Point Savings Bank v. Krokow, 235 App. Div. 126; Anglo London-Paris Nat. Bank v. Jacobson Co., Inc., 196 id. 51; Curry v. Mackenzie, 239 N.Y. 267.) Order granting summary judgment and the judgment of foreclosure and sale reversed on the law and the facts, with ten dollars costs and disbursements, and motion for summary judgment denied, with ten dollars costs, with leave to plaintiff to reply within ten days from the entry of the order hereon. Carswell, Tompkins, Davis and Johnston, JJ., concur; Lazansky, P.J., not voting.