251 A.D. 825 | N.Y. App. Div. | 1937
In an action for specific performance of a contract in which appellant agreed to release certain lots from the lien of his mortgage on real estate upon payment of a prescribed amount of money to him by respondent: Order granting pendente lite respondent’s motion to direct appellant to execute and deliver to respondent a release of certain real property from the lien of appellant’s mortgage, and awarding to respondent other relief, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The order was made on notice, upon affidavits, before the time of the appellant to answer had expired. It awarded to the respondent thus summarily all the relief prayed for in the complaint. It determined summarily all disputed issues in favor of the respondent and, on motion, granted to the respondent pendente Hie the full relief to which it would be entitled, if at all, only after a trial of the merits. It was, therefore, clearly erroneous. (Brighton by the Sea, Inc., v. Rivkin, 201 App. Div. 726; Maloney v. Katzenstein, 135 id. 224; Moller v. Lincoln Safe Deposit Co., 174 id. 458, citing Bachman v. Harrington, 184 N. Y. 458.) The order cannot be justified under rule 113 of the Rules of Civil Practice, for that rule, where a motion is made by plaintiff, presupposes an answer by the defendant. In this action none had been served. The defendant’s time within which to serve it had not expired. The order likewise cannot be justified under the provisions of Real Property Law, section 333-b, which contemplates only a satisfaction of mortgage. Lazansky, P J , Carswell, Johnston, Taylor and Close, JJ., concur.