Opinion
May 16, 1960
In an action to foreclose a mortgage on real property, plaintiff appeals from so much of an order of the Special Term, Supreme Court, Westchester County, made March 23, 1960, as denied its motion for summary judgment against the defendants-respondents. Said defendants are contract vendees of portions of the property covered by the mortgage, whose contracts were entered into prior to the making of the mortgage being foreclosed. The Special Term held that, although said defendants' contracts were either unrecorded or in some instances recorded subsequent to the mortgage, their liens are superior to the lien of the mortgage unless the mortgage was taken without notice, actual or constructive, of their rights ( Cassia Corp. v. North Hills Holding Corp., 278 App. Div. 960; Williamson v. Brown, 15 N.Y. 354). The Special Term also held that a triable issue exists as to whether plaintiff's assignor, when he took the mortgage, had knowledge sufficient to put him on inquiry as to the conflicting rights of the contract vendees. Order insofar as appealed from affirmed, with $10 costs and disbursements. We agree with the determination of the Special Term. We are also of the opinion that in a case such as this, where the facts upon which the motion is predicated are clearly not within the knowledge of the adverse parties, summary judgment should not be granted, and that the plaintiff should be required to prove its case by common-law proof, subject to cross-examination. (Cf. Newman v. Newark Fire Ins. Co., 281 App. Div. 852; De France v. Oestrike, 8 A.D.2d 735.) Nolan, P.J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.