Buffalo Savings Bank v. O'Gorman

Order reversed on the law, with ten dollars costs and disbursements, and motion for summary judgment granted, without costs. Memorandum: The plaintiff-mortgagee sues the defendants-mortgagors to recover $564.24, being the amount of past-due interest and of tax liens on the property which it has paid. The defendant’s answer consists of general denials and a counterclaim which alleges that in 1935 defendants assigned the rents of the mortgaged premises to plaintiff, that plaintiff has wilfully neglected to cause the premises to be leased and has permitted the same to remain vacant, thereby causing damage to the defendants in the sum of $1,000. Plaintiff, claiming that there is no defense to the action and no merit to defendants’ counterclaim, moved on affidavits for summary judgment under rule 113 of the Rules of Civil Practice. Defendants submitted no affidavits in opposition to the motion. The Special Term denied the motion upon the grounds that the relations of the parties changed when plaintiff took control of the property and that the court could not determine, upon the papers presented, whether certain of the moneys collected by plaintiff, pursuant to the assignment of the rents, should not have been applied in liquidation of the very items upon which plaintiff asks summary judgment. We find in plaintiff’s affidavits sufficient facts to substantiate the allegations of its complaint and to show that defendants’ counterclaim is without merit and is interposed only for the purpose of delay. The plaintiff’s motion, therefore, should have been granted. (General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; O’Meara Co. v. National Park Bank, 239 id. 386, 395; Buffalo General Hospital v. Suppa, 257 App. Div. 1030.) All concur. (The order denies plaintiff’s motion to strike out defendant’s answer and for summary judgment in an action under a bond and mortgage to recover installments of interest and taxes.) Present — Cunningham, Taylor, Dowling, Harris and MeCum, JJ.