Opinion
March 24, 1947.
In an action to foreclose a mortgage on real estate, the mortgage under foreclosure was assigned to plaintiff's testator as collateral security for a debt, after a prior assignment thereof by the same assignor, absolute on its face, but allegedly given as collateral security for indebtedness which plaintiff alleges has been fully paid. The mortgage was reassigned by the first assignee to the assignor, Merchants and Manufacturers Exchange of New York, which thereafter assigned the mortgage to New York Title Mortgage Company, which assigned the mortgage to another corporation, which in turn released the premises owned by respondents from the lien of the mortgage. Respondents moved for summary judgment pursuant to rule 113 of the Rules of Civil Practice, on the grounds (1) that they were purchasers for value and without notice and are protected by the recording act against the assignment to plaintiff's testator, and (2) that the assignment to plaintiff's testator was not in law or fact a valid assignment of the bond and mortgage, because there was no delivery thereof to plaintiff's testator. Order granting summary judgment to respondents reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, with $10 costs. The evidentiary facts and documentary proof submitted in support of the motion are insufficient to establish that the defenses urged are sufficient to defeat plaintiff's alleged cause of action. (Cf. Riordan v. Crabtree, 269 App. Div. 907; Finn v. Wells, 135 Misc. 53.) Hagarty, Acting P.J., Carswell, Johnston, Adel and Nolan, JJ., concur.