283 A.D. 877 | N.Y. App. Div. | 1954
In an action to foreclose a mortgage on real property, plaintiff appeals from an order granting the motion of defendant Weinger for summary judgment pursuant to rule 113 of the Rules of Civil Practice, dismissing the complaint on the merits, and denying its cross motion for summary judgment. Order modified on the law, by striking therefrom the first and third ordering paragraphs and by substituting in place of the first ordering paragraph a provision that said defendant’s motion is denied. As so modified, the order is affirmed, with $10 costs and disbursements to appellant to abide the event of a trial. If defendant Weinger is to prevail, it must be on proof that defendants’ default, by reason of which plaintiff elected to declare the entire principal sum secured by the mortgage due and payable, was neither willful nor in bad faith, and that plaintiff’s action, under the circumstances which existed was such as to establish a waiver, or such fraud, bad faith or oppressive and unconscionable conduct as to warrant a court of equity in refusing to extend the affirmative aid which plaintiff seeks in this action. (Malcolm v. Allen, 49 N. T. 448; Graf v. Sope Bldg. Gorp., 254 N. Y. 1; Ferlazzo v. Riley, 278 N. Y. 289; Domus Realty Gorp. v. 3440 Realty Co., 179 Mise. 749, affd. 266 App. Div. 725.) Issues are raised as to those questions which should not be settled on affidavits. Moreover, if defendant Weinger is to be relieved of his default, the relief should be afforded on such terms as may be just, on a full disclosure of the relevant facts. Nolan, P. J., Adel, Wenzel and Schmidt, JJ., concur; Murphy, J., dissents insofar as the motion of defendant Weinger for summary judgment is denied and votes to grant that motion, without prejudice to the commencement of a new action unless all arrears are promptly paid with interest, with the following memorandum: The sum of $352.66 was