Opinion
April 15, 1965
Simon Pogal for petitioner.
Liebschutz, Sutton, De Leeuw, Clark Lewis for Robert L. Teamerson.
The petitioner seeks an order directing the partial cancellation of a mortgage as it applies to certain of the lots contained in a second mortgage. The petitioner asserts that there was a verbal contract modifying and implementing the note and mortgage securing the note, whereby the second mortgage would be cancelled as to any particular lot upon the payment by petitioner of moneys "for house package, pre-cut delivered to any of lots * * * or any materials that were paid for." This, at best, is unclear.
In addition to other claims and defenses, the respondent denies any such verbal understanding existed and has furnished affidavits to buttress this claim, including affidavits by the original second mortgagee.
There is, therefore, a well-defined and distinct issue created in this very critical area. It is well to here note that no claim is made that prorata payments of the mortgage have been made and it is conceded that there is (and still would be even upon petitioner's claim) a substantial balance due on this mortgage.
This application is made pursuant to the provisions of section 1921 Real Prop. Acts. of the Real Property Actions and Proceedings Law. A reading of this section reveals that before relief can be granted thereunder, it must be shown that there has been a willful and unjustifiable refusal on the part of the mortgagee to satisfy the mortgage. ( Matter of O'Connell, 8 Misc.2d 367, 369; Matter of Lyons, 276 App. Div. 1086.)
In the light of the diverse claims made and issues created, there has not been a sufficient showing of an unjustifiable refusal.
The statute must be strictly construed ( Matter of Clark, 33 Misc.2d 145; Matter of Katzowitz, 214 App. Div. 429) and in view of all the circumstances, summary relief cannot be granted for a failure of conclusive proof of the claimed facts. Application denied.