7 A.D.2d 1019 | N.Y. App. Div. | 1959
Motion for reargument or to amend the decision of this court handed down December 1, 1958. Motion granted to the extent of amending the decision by striking therefrom the first and second paragraphs and by substituting therefor the following: “ In an action by the executrix of a mortgagor to cancel and discharge of record a mortgage on real property for $3,000, dated January 3,1924 (Real Property Law, § 500, subd. 4), the mortgagee counterclaimed to recover $3,000, with interest from January 1, 1930. The appeal is from an order and judgment (one paper) granting summary judgment, on respondent’s motion, for the relief demanded in the complaint. On this appeal it is indicated that the mortgage has been cancelled of record pursuant to the order and judgment appealed from. Order and judgment reversed, with $10 costs and disbursements, and judgment directed in favor of appellant (1) dismissing the complaint, (2) awarding him $3,000, with interest from June 8, 1953 on his counterclaims, and (3) directing the Register of the City of New York to reinstate the mortgage in full force and effect.” Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur; Nolan, P. J., dissents and votes to deny the motion.