270 A.D. 828 | N.Y. App. Div. | 1946
In an action to foreclose a mortgage, the answer admits the substantive allegations of the complaint and asserts as a partial defense and counterclaim that under the terms of the mortgage agreement' a part of the land should be released from the lien thereof. The demand for release was made after the principal indebtedness became due and remained unpaid. Order striking out appellant’s answer and directing judgment as prayed for in the complaint, unanimously affirmed, with $10 costs and disbursements. (Olason’s Point Land Go. v. Schwartz, 237 App. Div. 741.) The moratorium statutes (Civ. Prae. Act, § 1077-a et seg.) upon this record, do not require a holding that the terms of the release clause are enforcible by the mortgagor after the principal indebtedness became due and remained unpaid. Present — Hagarty, Acting P. J., Cars-well, Johnston, Adel and Nolan, JJ. [See post, p. 897.]
