Opinion
December 9, 1971
Appeal from the Erie Special Term.
Present — Marsh, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.
Order insofar as it grants partial summary judgment to respondent unanimously reversed and otherwise order affirmed, without costs. Memorandum: Special Term incorrectly granted partial summary judgment to respondents, declaring the deed to be a mortgage. Whether a deed, absolute on its face, is a mortgage depends upon the intent of the parties ( Matter of Newcourt Realty Holding Corp. v. Gabel, 28 A.D.2d 704; Real Property Law, § 320) and, as such, presents a question of fact requiring a trial.