Opinion
November 28, 1938.
Action to foreclose a mortgage on real property. Defendant-owner appeals from the order granting plaintiff's motion for reargument of its motion for summary judgment and on reargument granting the motion to strike out said defendant's answer, directing a reference to compute and judgment of foreclosure and sale. Order affirmed, with ten dollars costs and disbursements. The facts pleaded in the complaint are not in dispute. Defendant-owner pleaded as a defense that by reason of certain transactions between the parties the maintenance of the action by plaintiff is inequitable and unconscionable and that plaintiff is estopped from maintaining it. Defendant-owner submitted no proofs efficient to defeat the motion. The issue tendered is not genuine but feigned; there is in truth nothing to be tried. ( Curry v. Mackenzie, 239 N.Y. 267, 270.) Lazansky, P.J., Hagarty, Davis, Adel and Taylor, JJ., concur. [ 168 Misc. 328. ]