Opinion
February 6, 1941.
Faber, Fink Stuart, for the plaintiff.
C.E. Sutherland, for the defendants Muriel S. Bryan and John W. Bryan.
In arriving at the decision ( 175 Misc. 978), the court was led into believing that the defendant John W. Bryan was liable on the bond because of the allegation to that effect in the answer, which was verified.
It now appears that such was not the fact and that he was made a party to the action only because he was an occupant of the premises. Apparently, therefore, he is only a nominal defendant.
Furthermore, it appears that he is in the National Guard, and is now stationed in Brooklyn, N.Y., that drills are held twice each week and that his military duties do not require his full time.
Under the circumstances, it is difficult to see how defendant's military service materially affects his ability to conduct his defense to the action. In fact, no evidence has been adduced to indicate that he has a defense to such action.
For the reason that title to the property is in the name of the defendant Muriel S. Bryan, the wife of the defendant John W. Bryan, section 302 of the Soldiers' and Sailors' Civil Relief Act of 1940 (U.S. Code, tit. 50, Appendix, § 532), which permits a stay in a foreclosure action, has no application here.
It follows that there is no basis for a stay and that the motion to strike out the answer must be granted.
Settle order on notice.