Opinion
June, 1935.
In an action to foreclose a mortgage, order denying plaintiff's motion for summary judgment reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The claim of the respondents that at the time the 21 East Twenty-first Street Corporation made its mortgage to plaintiff it no longer had title to the property in question, having conveyed the same two days prior thereto to one Olsen, cannot be sustained. Although the deed from it to Olsen is dated September 23, 1931, it was not recorded until September 28, 1931, and the presumption, therefore, is that the deed to Olsen was not delivered until the date it was recorded. ( Ford v. Gale, 155 App. Div. 675.) Furthermore, the proof on the part of the plaintiff, that this deed was not delivered until September 28, 1931, is uncontradicted. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.