251 A.D. 721 | N.Y. App. Div. | 1937
In an action to foreclose a mortgage, order denying plaintiff’s motion for summary judgment and granting defendants’ motion to dismiss the complaint modified by striking therefrom the provision granting defendants’ motion and inserting in lieu thereof a provision denying the same, and as so modified unanimously affirmed, without costs. Judgment dismissing the complaint vacated, without costs. In our opinion, the failure of the parties to present material proof precludes summary determination of the issues involved. There is not incorporated in the record before us the mortgage which is sought to be foreclosed, the bonds and mortgages which were consolidated according to agreement or the agreement which is alleged to have been made, nor is there any proof as to whether the agreement was oral or written. In the absence of such proof, the efficacy of the agreement that the mortgages deposited thereunder should serve as collateral for future advances, as expressed by the notes, cannot be determined. Present — Hagarty, Johnston, Adel and Taylor, JJ.; Lazansky, P. J., not voting.