Opinion
July 10, 1967
Order of the Supreme Court, Kings County, dated December 12, 1966, which granted petitioners' application to dispense with the production of a mortgage and for cancellation of the mortgage, reversed on the law, without costs; and petition denied, without prejudice to a plenary action or proceeding. No questions of fact have been considered. Section 322 Real Prop. of the Real Property Law was the apparent basis for the petition and for the order under review, although the record is devoid of any indication in that regard. The petition, unsupported by any affidavits or other proofs, alleges a merger of a certain 1951 mortgage with a later 1955 mortgage; the petition impliedly admits that the first mortgage, the one that is the subject of this proceeding, was not paid. Those circumstances deprive petitioners of the summary procedure available under section 322 Real Prop. of the Real Property Law (see Matter of Macstan Realty Corp. v. Hlavac, 45 Misc.2d 495). The adjudication of the issues raised here should be accomplished in a plenary action or proceeding. Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.