Opinion
May, 1935.
In an action to recover the balance due on two consolidated bonds, the defendant, in his answer, alleges the bonds were solely secured by mortgages executed simultaneously with the bonds, and that the value of the mortgaged property, less the amount of prior incumbrances and liens, exceeds the amount due on the bonds, and demands that the value of the mortgaged property, with such deductions, be set off against the amount due. Plaintiff moved to strike out the answer and for summary judgment and for an assessment of damages. The answer alleges a complete defense. ( Union Trust Co. v. Vetromile, 239 App. Div. 562; Civ. Prac. Act, § 1083-b.) While defendant did not submit an affidavit showing such facts as may be deemed sufficient to entitle him to a trial, the moving affidavit admits the answer raises a triable issue. Order granting summary judgment reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Lazansky, P.J., Young, Carswell, Davis and Johnston, JJ., concur.